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Clark v Cook Shire Council[2007] QCA 139

Reported at [2008] 1 Qd R 327

Clark v Cook Shire Council[2007] QCA 139

Reported at [2008] 1 Qd R 327
 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

BARRY JAMES CLARK and MARILYN TERESA CLARK
(first applicants/first appellants)
PATRICK HAGARTY and MARGARET JOAN HAGARTY
(second applicants/second appellants)
FOREVER ENDEAVOUR 796 PTY LTD ACN 075 500 631
(third applicant/third appellant)
MINES AND INDUSTRIAL PROTECTIVE COATINGS PTY LTD ACN 081 804 177
(fourth applicant/fourth appellant)
KAREN OLSEN and SELWYN WENDT
(fifth applicants/fifth appellants)
v
COOK SHIRE COUNCIL
(respondent/respondent)

FILE NO/S:

Court of Appeal

PROCEEDING:

Application for Leave Integrated Planning Act

ORIGINATING COURT:

DELIVERED ON:

27 April 2007

DELIVERED AT:

Brisbane

HEARING DATE:

13 April 2007

JUDGES:

Williams and Keane JJA and Lyons J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Leave to appeal granted
2. Appeal dismissed

3. Applicants to pay the respondent's costs of the application and appeal

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where respondent notified public of proposed planning scheme – where submissions received in respect of notified scheme – where respondent sought to implement modified scheme – whether proper construction of s 16(2) of Sch 1 of Integrated Planning Act 1997 (Qld) obliged respondent to recommence notification process

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS AND PHRASES – SPECIFIC INTERPRETATIONS – meaning of "significant difference" in s 16(2) of Sch 1 of Integrated Planning Act 1997 (Qld)

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – UNREASONABLENESS – whether decision of Council to implement modified scheme was unreasonable

Integrated Planning Act 1997 (Qld), s 2.1, s 12 of Sch 1, s 14 of Sch 1, s 15 of Sch 1, s 16 of Sch 1, s 17 of Sch 1

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, applied

Buck v Bavone (1976) 135 CLR 110, applied

Leichhardt Council v Minister for Planning [No 2] (1995) 87 LGERA 78, distinguished

Rajendran v Tonkin (2004) 9 VR 414, applied

Resort Management Services Limited v Noosa Shire Council [1995] 1 Qd R 311; [1993] QCA 347, applied 

Shoreline Park Pty Ltd v Mackay City Council [2006] QPEC 020, distinguished

Vanmeld Pty Ltd v Fairfield City Council & Anor [1999] 46 NSWLR 78, distinguished

COUNSEL:

S Keim SC, with N Kidson, for the applicants/appellants

M Hinson SC, with S P Fynes-Clinton, for the respondent

SOLICITORS:

David Kempton for the applicants/appellants

King and Company for the respondent

[1]  WILLIAMS JA:  The applicants seek leave pursuant to s 4.1.56 of the Integrated Planning Act 1997 (Qld) ("the Act") to agitate the correct construction of s 16(2) of Schedule 1 of the Act.  That provision is part of the procedure which must be followed by a local authority when making or amending a planning scheme and it must be considered in that context.  All the relevant provisions of the Act are fully set out in the reasons for judgment of Keane JA and I will not repeat them.

[2] However, it is an important and relevant consideration when construing s 16(2) that s 12 of Schedule 1 only requires public notice to be given of the proposed planning scheme.  The minimum public notice provided for by that section is advertising the proposed planning scheme at least once in a newspaper circulating generally in the local government's area and displaying a copy of the notice in a conspicuous place in the local government's public office.  Inter alia, that notice must state that "written submissions about any aspect of the proposed planning scheme may be made to the local government by any person".  It is not without some significance to note that submissions may be made by persons who are not landowners, and submissions need not be restricted to the impact of the proposed planning scheme on land owned by the submitter.  No notice need be given specifically to landowners whose land is affected by the proposed scheme, and indeed an absentee landowner may never even be aware of the proposed scheme or the effect on his land.

[3] Section 16(1)(b) expressly provides that the local authority may "proceed with the proposed planning scheme with modifications".  It is in that situation that s 16(2) applies; it is in the following terms:

"If the local government decides to proceed with the proposed planning scheme with modifications and is satisfied the modifications make the proposed planning scheme significantly different from the proposed planning scheme as notified, it must recommence the process outlined in this schedule from section 12."

[4] Given the nature and impact of town planning schemes any modification would almost certainly in some way adversely affect some particular landowner or at least cause some particular landowner to believe he has been adversely affected.  It follows, in my view, that s 16(2) cannot mean that "the proposed planning scheme with modifications" is "significantly different from the proposed planning scheme as notified" simply because the modification has some adverse affect (actual or perceived) on a particular landowner.  Section 16(2) does not require the local authority to recommence the process simply because the modification to the planning scheme as notified has adversely affected a particular landowner in some way.  If a landowner whose rights are significantly affected by the "proposed planning scheme as notified" has no right to receive specific notice of that, why should modification of the scheme as notified causing some impact on a particular landowner have a different consequence.

[5] The words of s 16(2) make it clear that what has to be compared in order to determine whether or not there is a significant difference is the "planning scheme with modifications" and the "proposed planning scheme as notified".  As the learned judge at first instance in this case said, the phrase "significantly different" is more apt "to apply to the macrocosm of the planning scheme as a whole, rather than the microcosm of possible submissions or objections from particular landowners on grounds involving an assertion that personal interests have been adversely affected."  As Keane JA has pointed out the drafting of the relevant provisions of the Act appears to be a legislative adoption of the approach to a somewhat similar problem adopted by the New South Wales Court of Appeal in Leichhardt Council v Minister for Planning [No 2] (1995) 87 LGERA 78, where Priestley JA (with whom Sheller JA agreed) said at 84 that the test was whether the plan was "so different from the publicly exhibited draft that in some important respect it could be said to be a quite different plan …".

[6] In my view the learned judge at first instance construed s 16(2) correctly.  I agree with all that has been said by Keane JA in his reasons with respect to the arguments addressed to this Court on behalf of the applicants.

[7] I agree with the orders proposed by Keane JA.

[8]  KEANE JA:  The applicants own parcels of land in the Cook Shire which are within the area governed by a planning scheme which the Cook Shire Council ("the Council") has prepared and proposes to implement.  The applicants contend that this process has miscarried because the Council, having given notification of a planning scheme ("the notified scheme") and received submissions from the public in respect of the notified scheme, decided to implement a modified version of the scheme ("the modified scheme") without affording the public the opportunity to make further submissions on the modified scheme. 

[9] On 20 September 2006, the Council resolved to proceed with the modified scheme.  That course was open to the Council under s 16 of Sch 1 of the Integrated Planning Act 1997 (Qld) ("IPA") unless the Council was satisfied that the modified scheme was "significantly different" from the notified scheme. 

[10]  It was common ground in these proceedings that, notwithstanding the absence from material before this Court of evidence that the Council had decided that it was not satisfied that the modified scheme was "significantly different" from the notified scheme, the Court should proceed on the footing that the Council had made a decision to that effect. 

[11]  On that footing, the applicants brought proceedings in the Planning and Environment Court ("the P & E Court") in which they sought declarations to the effect that the modifications made the modified scheme significantly different from the notified scheme, and that the Council was therefore obliged to recommence the notification process.  That application was rejected by the P & E Court.  The applicants now seek leave to appeal to this Court from that decision under s 4.1.56 of IPA.  The only available grounds of appeal under s 4.1.56 are jurisdictional error or "error or mistake in law" on the part of the P & E Court.  The central contention which the applicants seek to agitate on appeal is that the learned primary judge misconstrued s 16 of Sch 1 of IPA. 

[12]  The question of statutory construction which arises is a matter of general importance.  It is sufficient to warrant the grant of leave to appeal.  That having been said, however, I consider that the appeal cannot succeed.  In order to explain why I have come to this conclusion, it is necessary first to set out the relevant legislative framework and to summarise the issues determined at first instance, and the learned primary judge's reasons for his conclusions, before discussing the competing submissions of the parties in relation to the construction of s 16 of Sch 1 of IPA.

The legislation

[13]  By virtue of s 2.1.2(1) of IPA, a planning scheme applies to the whole of the Council's local government area.  A planning scheme, determined in accordance with s 2.1.3, s 2.1.3A and s 2.1.4 of IPA, is required to co-ordinate and integrate the matters dealt with by the planning scheme.  Thus, a planning scheme is intended to provide the community with a coherent prescription of measures of local, regional and State importance within each local government area.  When the planning scheme is made it becomes a statutory instrument having the force of law by virtue of s 2.1.23(1) of IPA. 

[14]  Section 2.1.5 of IPA identifies, in broad terms, the steps involved in the making or amendment of a planning scheme.  It is in the following terms:

"Process for making or amending planning schemes

(1) The process stated in schedule 1 must be followed for making or amending a planning scheme.

(2) The process involves 3 stages

• preliminary consultation and preparation stage

• consideration of State interests and consultation stage

• adoption stage."

[15]  Section 2.1.6 of IPA addresses the possibility of non-compliance with Sch 1.  It provides:

"Compliance with sch 1

Despite section 2.1.5, if a planning scheme is made or amended in substantial compliance with the process stated in schedule 1, the planning scheme or amendment is valid so long as any noncompliance has not

(a) adversely affected the awareness of the public of the existence and nature of the proposed scheme; or

(b) restricted the opportunity of the public under schedule 1 to make properly made submissions; or

(c) restricted the opportunity of the Minister to exercise the Minister’s powers under schedule 1, sections 10, 11 and 18."

[16]  Section 12 of Sch 1 of IPA provides for public notification of a proposed planning scheme in the following terms:

"Public notice of, and access to, proposed planning scheme

(1) If the Minister advises the local government that it may notify the proposed planning scheme, the local government must publish, at least once in a newspaper circulating generally in the local government’s area, a notice stating the following –

(a) the name of the local government;

(b) if the notice is about an amendment of the planning scheme – the purpose and general effect of the proposed amendment;

(c) if the notice is about an amendment of the planning scheme but the proposed amendment is intended to apply only to part of the planning scheme area – a description of the land or area to which the proposed amendment is intended to apply;

(d) a contact telephone number for information about the proposed planning scheme;

(e) that the proposed planning scheme is available for inspection and purchase;

(f) that written submissions about any aspect of the proposed planning scheme may be made to the local government by any person;

(g) the period (the consultation period) during which the submissions may be made;

(h) the requirements for making a properly made submission under this part.

(2) The consultation period –

(a) for a proposed planning scheme – must extend for at least 60 business days after the first publication of the notice under subsection (1); and

(b) for a proposed amendment of a planning scheme –must extend for at least 30 business days after the first publication of the notice under subsection (1).

(3) For all of the consultation period, the local government must display a copy of the notice in a conspicuous place in the local government’s public office."

[17]  Section 14 of Sch 1 of IPA provides that the Council "must consider every properly made submission about the proposed planning scheme".

[18]  Section 15 of Sch 1 of IPA provides that "sections 12, 13 and 14 state the minimum requirements for consultation with the public about the proposed planning scheme, but are not intended to prevent additional consultation".

[19]  Section 16 of Sch 1 of IPA is the provision of crucial relevance in this case.  It is in the following terms:

"Decision on proceeding with proposed planning scheme

(1) After considering every properly made submission, the local government must decide whether to –

(a) proceed with the proposed planning scheme as notified; or

(b) proceed with the proposed planning scheme with modifications; or

(c) not proceed with the proposed planning scheme.

(2) If the local government decides to proceed with the proposed planning scheme with modifications and is satisfied the modifications make the proposed planning scheme significantly different from the proposed planning scheme as notified, it must recommence the process outlined in this schedule from section 12."

[20]  Where a local authority decides to proceed with the proposed planning scheme under either s 16(1)(a) or (b), s 17 of Sch 1 of IPA states the obligation of a local authority in terms of its response to persons who have made submissions about the proposed planning scheme.  It provides:

"Reporting to persons who made submissions about proposed planning scheme

(1) This section applies if the local government receives any properly made submissions about the proposed planning scheme and proceeds under section 16(1)(a) or (b).

(2) The local government must prepare a report explaining in general terms how it has dealt with the submissions received and give to the principal submitter of each properly made submission –

  1. a copy of the report; or
  2. a copy of the part of the report relating to the matter about which the submission was made."

The applicants' argument in the P & E Court

[21]  At first instance, the applicants contended that the Council had made two errors of law in proceeding on the footing that s 16(2) of Sch 1 did not oblige the Council to recommence the process.  First, it was said that no reasonable council could have been satisfied that the modified scheme was not significantly different from the notified scheme; and, secondly, it was said the Council failed to take into account considerations relevant to the decision to adopt the modified scheme without recommencing the public notification process.[1]  The considerations said to be relevant appear to be the entitlement or expectation of the applicants to be consulted further by the Council before the adoption of the modified scheme by reason of the significant difference to the interests of the applicants of the modifications to the notified scheme.  As the case was argued before the learned primary judge, and in this Court, these contentions were seen to depend upon the proper construction of s 16(2) of Sch 1.

The decision of the learned primary judge

[22]  The effect of the modified scheme upon the applicants was summarised by the learned primary judge.  The accuracy of this summary has not been challenged on appeal.  His Honour said:

"… The first applicants, the Clarks, own several large lots near the mouth of the Endeavour River which contain an old wartime runway, a quarry, and industrial areas. The original notified proposed scheme designated about 80 per cent of Lot 39 on RP 71022 (about 79 hectares) in the Conservation Zone, with the balance (about 20 hectares) in the Rural Zone, and the adjoining Lot 40 (containing the disused airstrip) was placed wholly in the Rural Zone. Under the new, modified scheme about 90 per cent or 89 hectares of Lot 39 is included in the Conservation Zone, with the balance in the Industrial Zone, and the whole of Lot 40 is placed in the Conservation Zone.

     Each of the second to fifth applicants owns a waterfront urban lot of around 1,000 - 1,600 m2 save for the fifth applicant, whose parcel contains just under 6,000m2. Under the original proposed scheme each of these lots was included in the Medium Density Residential Zone but under the new, modified scheme each is placed in the Low Density Residential Zone.

     The Clarks made representations about the original proposed scheme …

     The other applicants were content with the Medium Density Residential Zoning shown in the scheme in its earlier form and did not perceive any need to make a submission. Their complaint was that, had they known the respondent was considering a change to Low Density Residential, they would have done so."[2]

[23]  In respect of the proper construction of s 16(2) of Sch 1, the learned primary judge's essential reasoning was as follows:

"… It is most unlikely the Legislature intended that a change in the proposed zoning of one parcel or a small proportion of those included in a scheme area to something different from that previously notified is, in itself, a significant difference. IPA planning schemes are voluminous and serve a number of purposes but, essentially, they prescribe preferred forms of development. While particular designations and zonings of areas and districts are an integral part of them, to construe the word ‘modifications’ to include changes to zonings on a scale which is, in the context of the scheme as a whole, minor would make the exercise under Sch 1 unworkable.

     Secondly, it is material that the consultation process under Sch 1, ss 1-8 and s 12 does not involve notice to individual landowners but, rather, to the public generally by advertisement in a newspaper; and, that the submissions which are invited are, again, not site specific but may address 'any aspect' and be made by 'any person'. These terms indicate the process is consultative, in the broad sense of that word. It has no particular focus on the individual personal interests of landowners (while not excluding them) but, rather, on the wider planning issues which confront the shire, town or city.

     Then, the public is again invited to comment upon Council’s provisional decisions about those issues. That mandatory step – for Council to consider submissions – requires and enables it to address differences between the manner in which it has approached planning issues, and the way submitters suggest they should be addressed, so as to make a more fully informed and considered decision about the final form of the planning scheme.

     In this broader context, the more compelling meaning of the phrase is that a modified planning scheme would be 'significantly different' from the previous notified scheme if the modifications raised new issues on a significant scale: i.e. about permitted or desirable forms or patterns of development within the local government area as a whole, or an identifiable and significant locality within it; and, if those new issues were not ones upon which the Council previously formed a view which had been notified to the public, and exposed to submissions.

     In short, the phrase is one which is more apt, in the context of the legislation, to apply to the macrocosm of the planning scheme as a whole, rather than the microcosm of possible submissions or objections from particular landowners on grounds involving an assertion that personal interests have been adversely affected. On this analysis, the matter for consideration under s 16(2) is whether the proposed changes raise a significant new question about planning alternatives to deal with a material planning issue for the Shire or a particular locality, such that further public consultation could be reasonably expected to bring forward material considerations for Council’s decision which had not previously been advanced."[3]

[24]  The learned primary judge, having so construed s 16(2) of Sch 1, rejected as misconceived the applicants' arguments that a decision by the Council that it was satisfied that the modified scheme was not significantly different from the notified scheme was a decision which no reasonable council could have made, or was not a decision based only on relevant considerations.

The arguments of the parties

[25]  In this Court, the submission for the applicants is to the effect that the learned primary judge erred in treating the "significant difference" spoken of in s 16(2) of Sch 1 as being concerned with the difference in the content of the planning scheme as a whole rather than with the significance of the impact of the modifications upon individual submitters or other persons in the local government area.  The applicants contended that, as a matter of the true construction of s 16(2) of Sch 1, the Council was obliged to consider the impact of each particular modification upon any person within the local government area in coming to a conclusion whether it is satisfied that the modified scheme is significantly different from the notified scheme.  In the applicants' written outline of argument, they argued that "'significance' is to be judged by whether or not a reasonable desire to make submissions has occurred and a right to make submissions might reasonably be expected to arise".

[26]  The Council contends that, when s 16(2) of Sch 1 speaks of "significant difference", it is speaking of the result of a comparison between the notified scheme and the modified scheme not of differences in each scheme which might be significant to submitters or other persons. 

[27]  Section 16(2) of Sch 1 postulates a comparison between the notified scheme and the modified scheme in order to determine whether the modifications make the proposed scheme different from the scheme as notified.  The question which must then be addressed is whether that difference is significant.  The applicants submit that the answer to this question of significance is concerned with how the modified scheme may affect those persons who have made or were entitled to make submissions.  This answer assumes that "significance" is concerned with the process which has led to the modified scheme and the effect of that process upon the particular interests of persons who may be affected by modifications to the notified scheme.  The Council submits that the difference of which s 16(2) of Sch 1 speaks is not concerned with the impact of modifications on individual submitters, but with the terms of each scheme.  The Council's submission proceeds on the footing that "significance" in s 16(2) of Sch 1 is concerned with the actual content of the schemes being compared.  In my respectful opinion, it is the Council's submission which should be accepted.

[28]  The focus of the applicants' argument was upon the potential for particular modifications to the notified scheme to have some adverse impact upon submitters, or other persons in the local government area, and the likelihood that they would wish to make submissions against such an outcome.  The applicants' contention is that there will be a "significant difference", within the meaning of s 16(2) of Sch 1, if a submitter or other person is so significantly affected by a modification that the Council should, acting reasonably, appreciate that the submitter or other person would wish to make a further submission.  In my respectful opinion, this is not the effect of s 16(2) of Sch 1. 

[29]  The text of s 16(2) of Sch 1 is concerned with the difference between schemes, not with whether submitters or other persons might wish to dispute the reasonableness or fairness of the scheme the Council is then minded to implement.  Section 16(2) of Sch 1 is explicitly focussed upon the difference between the modified scheme and the notified scheme, not between particular provisions in respect of particular parts of the local government area affected by particular elements of the planning scheme.  In my respectful opinion, "significance" in this context is concerned with whether the modifications are such as to have the consequence that the modified scheme as a whole is materially different from the notified scheme. 

[30]  One arrives at the same conclusion if one considers that question more broadly.  The requirements of s 12 of Sch 1 for the notification of the planning scheme contemplate notification to the public, not to individual landowners or other persons within the local government area.  It is entirely possible that the scheme-making process contemplated by Sch 1 could be completed without a landowner being aware of the process.  The evident purpose of Sch 1, and particularly of s 12 and s 16, is to ensure that the public is afforded the opportunity to comment on the planning scheme which, when introduced, will regulate many important aspects of life within the local government area.  These provisions contemplate input from the public upon the planning scheme as the framework for that regulation.  That this is so is apparent from the circumstance that the opportunity for comment is afforded by Sch 1, not only to landowners or rate payers, but generally to all members of the public.  There is no provision for ensuring that each landowner or ratepayer within the local government area, or any other person having a particular interest which might be affected by the new planning scheme, has actually received notice of the proposed scheme, or, in the event that any submissions are made by such persons, for ensuring that those submissions are acted upon (as opposed to considered in accordance with s 14 of Sch 1) by the local authority.  Section 17 of Sch 1 makes express provision for the Council's response to submitters where the Council decides to proceed with the planning scheme.  If particular interests were irrelevant at the commencement of the consultation process, there is nothing which suggests that those interests might somehow become relevant, and, indeed, decisive, by the time s 16(2) of Sch 1 is reached, but irrelevant again after that step.  To the extent that the local authority may fail to act upon the submissions it receives as a result of notification, the sanction for such a failure is, not surprisingly, a political one.  The point of these observations for present purposes is that s 12 and s 16 of Sch 1 are not concerned with the potential impact of the modified scheme on individual interests as such, but with the overall framework for land use and development within the local government area.

[31]  It is also important to note that any re-notification of a modified scheme is to be made under s 12 of Sch 1 to the public, rather than to the individual submitters or groups of submitters adversely affected by the modifications to the notified scheme.  The further consultation which may be necessary, if the Council is satisfied that the modified scheme is indeed significantly different from the notified scheme, will be on a public scale pursuant to s 12 of Sch 1.  For some individual or group to be given special consideration would be inconsistent with the evident intent that the content of the scheme should be determined solely as a matter of the public interest.  This appreciation of the scope of s 16(2) of Sch 1 is confirmed by the provisions of s 2.1.6 of IPA which relevantly deny statutory immunity from non-compliance with Sch 1 if the non-compliance "adversely affects the awareness of the public of the existence and nature of the proposed scheme", or has "restricted the opportunity of the public … to make properly made submissions".

[32]  It is clear from s 16(1)(b) and s 16(2) of Sch 1 that a council may, in some cases at least, proceed with a "proposed planning scheme with modifications" without recommencing the process outlined in s 12 of Sch 1.  In other words, the Council is not obliged to recommence the process just because a planning scheme is modified in some respect after it has been notified and submissions received.  The terms of a planning scheme inevitably reflect the striking of an overall balance, in the public interest, between the many interests potentially affected by the planning scheme.[4]  It is important not to minimise the force of this consideration.  In the striking of the overall balance in a planning scheme, there will be "winners and losers" so far as individual interests are concerned.  If any modification apt adversely to affect an individual within the local government area were to be sufficient to require the recommencement of the process, the shifting of a "burden" from the applicants, or one of them, to another landowner after re-notification and further submissions would enliven the necessity for a further recommencement of the notification process.  The legislature cannot have intended to condemn local authorities, and, more importantly, the local communities they are intended by the legislature to serve, to a "Groundhog Day" scenario of recurrent consultation.

[33]  It was suggested on behalf of the applicants that this difficulty could be overcome by modifications to the public notice required by s 12(1) of Sch 1 to ensure that submissions be directed to identified modifications, or possible modifications.  That suggestion is quite inconsistent with the mandatory terms of s 12(1)(f) of Sch 1 which requires that the notice issued by the Council invite and consider submissions "about any aspect of the proposed planning scheme".

[34]  Mr Hinson of Senior Counsel, who appeared for the Council, drew the Court's attention to the circumstance that if the legislature had been minded to make a provision of the kind for which the applicants contended, a form of words by which that intention could have been given effect was readily available.  One of the elements of the definition of "minor change" in Sch 10 of IPA is that "for a development requiring impact assessment – [the change] be likely, in the assessment manager's opinion, to cause a person to make a properly made submission objecting to the proposal …"  It would be a strong thing indeed to read s 16(2) of Sch 1 as if it referred to a "difference which was likely in the Council's opinion to cause a person to make a submission" when, if that had been the legislative intent, the legislature could easily have said so.[5]

The authorities

[35]  The applicants, while acknowledging the absence of authoritative guidance in the case law in relation to the resolution of this crucial question, sought assistance from a number of decisions.  The applicants referred in their submissions before Judge Wilson SC to the decision of Judge Wall QC in Shoreline Park Pty Ltd v Mackay City Council,[6] but that was a case where, evidently without the benefit of the extensive arguments which have been addressed to the P & E Court and this Court, his Honour held that there was a sufficient question as to whether a council had complied with s 16 of Sch 1 to support an interlocutory injunction.  That decision affords no assistance in relation to the actual resolution of the crucial question in this case.

[36]  The applicants referred in this Court to the decision of the New South Wales Court of Appeal in Leichhardt Council v Minister for Planning [No 2],[7] but that case did not involve consideration of a statutory provision in the terms of s 16(2) of Sch 1.  Indeed, it may well be that s 16(2) of Sch 1 represents a legislative adoption of the Court's approach in that case to resolving the question whether the regional environmental plan made by the Minister so differed from the draft plan which had been publicly exhibited that it was not the product of the statutorily prescribed process.  The test adopted by Priestley JA, with whom Sheller JA agreed, was whether the plan was "so different from the publicly exhibited draft that in some important respect it could be said to be a quite different plan".[8]  The applicants also referred to the decision of the New South Wales Court of Appeal in Vanmeld Pty Ltd v Fairfield City Council & Anor,[9] but once again the Court was not concerned to construe a provision in terms similar to s 16(2) of Sch 1, and Meagher JA expressly confirmed that the approach of the Court in Leichhardt Municipal Council v Minister for Planning [No 2] involved a consideration of the differences between the plan as made and the draft as notified to determine whether there was an overall difference.[10]

[37]  Nothing in the decisions of the New South Wales Court of Appeal to which reference has been made, nor the other decisions to which the applicants referred,[11] detracts from the construction of s 16(2) of Sch 1 which commended itself to the learned primary judge in this case.  Indeed, if anything, the approach in Leichhardt Municipal Council v Minister for Planning [No 2] tends to support the conclusion that his Honour was correct in taking the view that s 16(2) of Sch 1 requires an overall comparison of the modified scheme with the notified scheme, not an investigation whether a particular modification may have an adverse impact upon particular interests of those to be affected by the planning scheme.

[38]  While these authorities rightly emphasise the importance of the rights of an individual affected by the decisions of local authorities, and the necessity for a clear indication of a legislative intention to trench upon those rights without procedural fairness being accorded to the affected person, the applicants expressly did not contend for a right to make further submissions other than as a consequence of a construction of s 16(2) of Sch 1.

[39]  On the approach for which the applicants argued, the Council was required to concern itself with whether modifications to the notified scheme might affect submitters or other persons so significantly as to be likely to lead them to seek to make further submissions under s 12 of Sch 1, even if those modifications made little difference to the overall operation of the proposed scheme.  For the reasons I have given, the applicants' approach to the construction of s 16(2) of Sch 1 cannot be accepted.  It follows that I consider that the decision of the P & E Court must be upheld.

Relevant considerations and unreasonableness

[40]  The planning scheme for a local government area is delegated legislation.  It provides, in relatively broad terms of general application, a coherent and integrated framework for land use within that area:  it does not purport to make determinations of the land use rights of individual landowners.  The making of the planning scheme determines the content of a body of rules of conduct.  It might, therefore, be argued that one is concerned here with an exercise of a legislative power rather than of a power of administrative character.[12]  That argument was rejected by the decision of this Court in Resort Management Services Limited v Noosa Shire Council.[13]  The question remains, however, whether "it is possible to demonstrate an operative illogicality" in the decision of the Council.[14]

[41]  Once it is accepted, as I think it must be, that the Council was required by s 16(2) of Sch 1 to look at the overall difference between the modified scheme and the notified scheme, it cannot be demonstrated that there was any operative illogicality in the decision of the Council.  The difference was not "significant" for the purposes of s 16(2) of Sch 1 simply because a particular individual, or particular individuals, were likely to be adversely affected by the modifications.

[42]  In Buck v Bavone,[15] Gibbs J (as his Honour then was) said:

"It is not uncommon for statutes to provide that a board or other authority shall or may take certain action if it is satisfied of the existence of certain matters specified in the statute. Whether the decision of the authority under such a statute can be effectively reviewed by the courts will often largely depend on the nature of the matters of which the authority is required to be satisfied. In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously.

     Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it.

     However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts …" (emphasis added)

[43]  IPA does not prescribe the considerations relevant to the Council's satisfaction for the purposes of s 16(2) of Sch 1 beyond leaving it to the Council to satisfy itself as to whether the modifications make the modified scheme significantly different from the notified scheme.  In these circumstances, unless some obviously applicable principle has been ignored, there is little room for such an argument.[16]  Any contention that the Council was obliged to exercise the discretion to take into account the interests of those persons significantly affected by a modification in deciding whether to recommence the notification process must stand or fall with the true construction of s 16(2) of Sch 1.  If it is said that the question is whether the Council erred in failing to take account of those interests as matters which the Council was entitled to take into account in exercising its discretion, then the more sound basis for scrutiny of the lawfulness of the decision is Wednesbury unreasonableness.[17]   In this regard, in Rajendran v Tonkin,[18] Morris AJA, with whom Buchanan and Eames JJA agreed, summarised the position in terms of legal principle:

"Where there are a wide range of considerations which may be relevant, in the sense that a decision-maker is entitled to take them into account, it does not follow that the decision-maker errs in law if he or she does not take a particular consideration into account. In many fields of administrative and judicial decision making the range of considerations which are potentially relevant is so broad that decision making would be impossible if every possible factor, which might bear upon the question, was required to be considered as if completing some gigantic check list (Town planning decisions are a good example.  See Sweetvale Pty Ltd v Minister for Planning [2004] VCAT 38 at [40] and Hunnam v Evans (2003) 129 LGERA 106 at 117, [22]). In Minister for Aboriginal Affairs v Peko-Wallsend Ltd ((1986 162 CLR 24 at 39 – 41) Mason J set out some general principles in relation to judicial review of administrative action based upon a failure to have regard to a relevant consideration, including the following:

the ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he or she is bound to take into account in making that decision;

what factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion; and

not every consideration that a decision-maker is bound to take into account, but fails to take into account, will justify the court in setting aside the impugned decision and ordering that the decision be re-exercised according to law.

In relation to the second of these principles, Mason J said: (At 40)

… where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.

     In Peko-Wallsend Mason J also observed that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker to determine the appropriate weight to be given to the matters required to be taken into account in exercising a statutory power. He added: (At 41)

I say 'generally' because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is 'manifestly unreasonable'."

[44]  The real question, then, is whether the Council's decision can be said to be so unreasonable or based on considerations so irrelevant that it is not a decision about the relevant subject matter in any meaningful sense of the word.  It is necessary to demonstrate that the decision is one which is so unreasonable that it could not have been made by a reasonable decision maker, ie of "unreasonableness" in the sense used in Associated Provincial Picture Houses Ltd v Wednesbury Corporation.[19]

[45]  In the present case, the matter of which the Council was required to be satisfied was a matter of "opinion and policy", in that the "significance" of the differences between the notified scheme and the modified scheme is not something which is apt to be determined as a matter of objective fact by reference to specific criteria laid down by the legislation.  The Council, in making a decision for the purposes of s 16(2) of Sch 1, is concerned to prescribe broad rules for development, not to adjudicate between bodies of evidence for and against a finding of a particular fact.  The point of the passage cited above from Buck v Bavone is that the broader and more indeterminate the question for decision, and the more such a decision reflects political considerations and priorities on which reasonable minds may differ widely, the more difficult it is for a court to reach a conclusion that an impugned decision is absurd.

[46]  There may, of course, be cases in which an individual interest, or an accumulation of individual interests, may be so important to the overall balance of the proposed scheme that a modification which affects that interest may also render the modified scheme significantly different from the notified scheme.  In some cases, a modification to one element of a planning scheme affecting an individual interest within the local government area might have such a radical impact upon the overall planning scheme that the only reasonable conclusion which could be reached by a reasonable council is that the modified scheme is significantly different from the notified scheme.  For example, in a small local government area of a strongly rural character, a modification to include a large area in one ownership in an area devoted solely to noxious industry could well require the modified scheme to be regarded as significantly different from the notified scheme, beyond the possibility of any reasonable view to the contrary.

[47]  In this case, however, the applicants did not invite the P & E Court to make the comparison which is relevant for the purposes of s 16(2) of Sch 1.  Rather, the applicants sought to argue that, because their individual interests were significantly affected by the modifications, the modified scheme was, therefore, significantly different from the notified scheme.  The applicants' argument did not begin to address the true issue posed by s 16(2) of Sch 1 in order to show that the opinion of the Council on that issue was one which could not have been held by any reasonable council. 

Conclusion and orders

[48]  The applicants' argument depends upon the adoption of a different point of comparison, in terms of "significant difference", than that adopted by s 16(2) of Sch 1 of IPA. 

[49]  I would grant leave to appeal, but dismiss the appeal.

[50]  I would order that the applicants pay the respondent's costs of the application and appeal.

[51]  LYONS J:  I have had the advantage of reading the reasons for judgment of both Williams JA and Keane JA.  In the reasons of Keane JA there is a full statement of the background circumstances giving rise to this appeal.  I agree with the reasons of each of their Honours and the orders proposed by Keane JA.

Footnotes

[1] Clark & Ors v Cook Shire Council [2006] QPEC 123 at [30].

[2] Clark & Ors v Cook Shire Council [2006] QPEC 123 at [4] – [7].

[3] Clark & Ors v Cook Shire Council [2006] QPEC 123 at [21] – [25].

[4] Cf s 1.3.3 and s 2.1.3(a) of IPA. See also Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd & Ors (1996) 91 LGERA 31 at 34.

[5] Cf I & L Securities Pty Ltd v H T W Valuers Pty Ltd (2002) 210 CLR 109 at 118 [22].

[6] [2006] QPEC 020.

[7] (1995) 87 LGERA 78.

[8] (1995) 87 LGERA 78 at 84.

[9] (1999) 46 NSWLR 78.

[10] (1999) 46 NSWLR 78 at 114 [184].

[11] R v Resource Planning & Development Commission; ex parte Dorney (No 2) (2003) 12 Tas R 69; Yallingup Residents Association (Inc) v State Administrative Tribunal and Ors (2006) 148 LGERA 132.

[12] Minister for Industry and Commerce v Tooheys Limited (1982) 60 FLR 325 at 331.

[13] [1995] 1 Qd R 311.

[14] SAT FM Pty Ltd v Australian Broadcasting Authority (1997) 75 FCR 604 at 608; Century Metals and Mining NL v Yeomans (1989) 40 FCR 564 at 588; R G Capital Radio Ltd v Australian Broadcasting Authority (2001) 113 FCR 185 at 199 – 200 [64].

[15] (1976) 135 CLR 110 at 118 – 119.

[16] H A Bachrach Pty Ltd v Minister for Housing & Ors (1994) 85 LGERA 134 at 141.

[17] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

[18] (2004) 9 VR 414 at 420 – 421 [20] – [22].

[19] [1948] 1 KB 223; Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446 at [564].

 

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Editorial Notes

  • Published Case Name:

    Clark & Ors v Cook Shire Council

  • Shortened Case Name:

    Clark v Cook Shire Council

  • Reported Citation:

    [2008] 1 Qd R 327

  • MNC:

    [2007] QCA 139

  • Court:

    QCA

  • Judge(s):

    Williams JA, Keane JA, Lyons J

  • Date:

    27 Apr 2007

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2006] QPEC 12315 Dec 2006Application alleging error in procedure by Council in modifying planning schemes; contention is that this new, modified planning scheme is, in the words of s 16, significantly different from the previous version and Council is therefore required under s 16(2) IPA to recommence the public notification process; no ground for concluding, here, that it was unreasonable for the Council to determine that the changes were not significantly different from the scheme which was publicly advertised: A Wils
Appeal Determined (QCA)[2007] QCA 139 [2008] 1 Qd R 327; (2007) 152 LGERA 420; [2007] QPELR 49427 Apr 2007Leave to appeal granted an appeal dismissed with costs; claim sought declarations to the effect that the modifications made the modified scheme significantly different from the notified scheme, and that the Council was therefore obliged to recommence the notification process; Section 16(2) does not require the local authority to recommence the process simply because the modification to the planning scheme as notified has adversely affected a landowner: Williams and Keane JJA and Lyons J.

Appeal Status

Appeal Determined (QCA)

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