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  4. Surfers Beachfront Protection Association Inc. (IA 39544) v Council of the City of Gold Coast - [2021] QPEC 73

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Surfers Beachfront Protection Association Inc. (IA 39544) v Council of the City of Gold Coast[2021] QPEC 73

Surfers Beachfront Protection Association Inc. (IA 39544) v Council of the City of Gold Coast[2021] QPEC 73

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Surfers Beachfront Protection Association Inc. (IA 39544) v Council of the City of Gold Coast & Anor [2021] QPEC 73

PARTIES:

SURFERS BEACHFRONT PROTECTION ASSOCIATION INC. (IA 39544)

(applicant)

v

COUNCIL OF THE CITY OF GOLD COAST

(first respondent)

and

CHIEF EXECUTIVE, DEPARTMENT OF STATE DEVELOPMENT, MANUFACTURING INFRASTRUCTURE AND PLANNING

(second respondent)

FILE NO/S:

D104/2021

DIVISION:

Planning and Environment

PROCEEDING:

Application

ORIGINATING COURT:

Planning and Environment Court, Southport

DELIVERED ON:

19 November 2021, ex tempore

DELIVERED AT:

Southport

HEARING DATE:

19 November 2021

JUDGE:

Rackemann DCJ

ORDER:

The evidence is excluded.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPLICATION – where the first and second respondents apply for a ruling that evidence the applicant proposes to rely upon in the hearing is inadmissible – where the proceeding is an originating application that seeks to challenge the approval given by the second respondent to the first respondent for a development permit for operational work for the construction of a public path and associated infrastructure on the basis of legal unreasonableness – where the delegate approved the development application on the basis of compliance with the relevant performance outcomes of the applicable code – where the applicant seeks to place expert evidence before the Court that was not before the decision-maker – where the experts carried out assessments to conclude that the performance outcomes are not met – whether the expert evidence ought be admitted

CASES:

Arnold v Minister Administering the Water Management Act 2000 (No 6) [2013] NSWLEC 73

Asia Pacific LNG Pty Ltd & Ors v The Treasurer, Minster for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport [2019] QSC 124

Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446

Ferreyra & Ors v Brisbane City Council & Anor [2016] QPEC 10

COUNSEL:

R Anderson QC for the applicant

J Horton QC and N Loos for the first respondent

D O'Brien QC and W Macintosh for the second respondent

SOLICITORS:

Hickey Lawyers for the applicant

MinterEllison Gold Coast for the first respondent

McInnes Wilson Lawyers for the second respondent

  1. [1]
    This is an application by the first and second respondents to rule on their objections to the evidence proposed to be relied upon by the applicant in the hearing of this proceeding. The proceeding is an originating application for declarations and orders which, in effect, seek to challenge the approval given by the second respondent to the first respondent of its application for a development permit for operational work for the construction of a public path and associated infrastructure. The development application was code assessable. Accordingly, there were no public submission or appeal rights. The applicant’s challenge to the approval is on the ground that the decision was so unreasonable that no decision-maker could have reasonably made it.
  1. [2]
    The legal principles in relation to legal unreasonableness were summarised by Bond J in Asia Pacific LNG Pty Ltd & Ors v The Treasurer, Minster for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport [2019] QSC 124 at paras 155 to 162 and I respectfully adopt what his Honour said in relation to those principles.  The review by a court of the reasonableness of the decision-maker is concerned mostly with the existence of justification, transparency, and intelligibility within the decision-making process, but also with whether the decision falls within a range of possible acceptable outcomes which are defensible in respect of the facts and law.  The second of those may be referred to as the reasonableness of the outcome. 
  1. [3]
    In this case, the decision-making power of the chief executive was delegated to a particular officer within the department. The material shows that the approval, subject to conditions, was granted by the delegate on the basis that the development complied with the relevant performance outcomes of the applicable code, being State code 8. Having concluded that the development, as conditioned, so complied (and consequently, by reason of s 2.3 of the code, complied with the code itself), the decision-maker was required to approve the application by reason of s 60(2) of the Planning Act 2016 (Qld).  The material discloses that the material that was before the decision-maker included material which dealt with whether there was compliance with the performance outcomes of the code. That included an analysis in a technical agency assessment advice and a review of that in a SARA assessment report. 
  1. [4]
    The applicant’s case is that the conclusion that the performance outcomes were met, was at least in some instances unreasonable. In support of its case, it wishes to place before the Court, evidence of the assessments of compliance or otherwise, which have, post the decision of the delegate, been carried out by experts engaged by it. Those experts have made their own assessments from their own knowledge and were not limited to the information and matters before the decision-maker, in order to conclude that, in their opinion, the relevant performance outcomes, or some of them, are not met. The intention is to use that material to persuade the Court to find that, as a matter of fact, the performance outcomes are not met, as a step in the process towards convincing the Court that the outcome of the decision-making process was unreasonable.
  1. [5]
    The applicant contends that such an approach is permissible and cites an example of such evidence having been called in an earlier case in this Court in Ferreyra & Ors v Brisbane City Council & Anor [2016] QPEC 10.  The relevant legal principles in relation to the admissibility of material not before the decision-maker at the time of the making of the decision was dealt with in the Australia Pacific LNG case in annexure B to the reasons of Bond J.  I again respectfully adopt what his Honour said in relation to those matters of principle. 
  1. [6]
    As his Honour observed, ordinarily material not before the decision-maker at the time of the making of the decision will not be admissible in proceedings for judicial review. The subject proceedings are not in terms of a judicial review but are akin to judicial review. The admissibility of evidence not before the decision-maker, however, depends upon the grounds of review. And there are some grounds which permit such evidence to be admitted. The position, with respect to cases where the ground is legal unreasonableness, is less than clear, but the ground would generally lead to the evidence consisting primarily of the material before the decision-maker.
  1. [7]
    His Honour dealt with what might be described as the broader, permissive view of the admission of additional evidence of Weinberg J in Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446, which is the case that was cited in Ferreyra v Brisbane City Council (where admissibility does not seem to have been a matter of contest), before rejecting that approach.  His Honour also extracted parts of what Biscoe J said in Arnold v Minister Administering the Water Management Act 2000 (No 6) [2013] NSWLEC 73.  Those extracts included one where Biscoe J expressed the view that expert evidence may be required to show that the material before the decision-maker was fallacious and operated to produce an absurd result that no reasonable decision-maker could have reached.  Bond J went on to say that he was unable to accept the breadth of the view of Biscoe J, observing that to proceed that way would be to permit an aggrieved person to invite the Court to substitute for the view of the decision-maker, its own view of the acceptability of the evidence which was before the repository of power and to do so based on evidence which was not before the repository of power. 
  1. [8]
    I respectfully agree with Bond J. As his Honour went on to acknowledge, that does not mean that there are no circumstances in which evidence might be permitted on an application for review, on the grounds of legal unreasonableness. One example which applied in the Australia Pacific LNG case was material that elucidated the technical concepts of economic theory and modelling and valuation, that were in fact dealt with in the material before the decision-maker. Such evidence permits the Court, on review, to understand the material that was before the decision-maker. Other examples are given in the extracts from the judgment of Biscoe J in the Arnold case, extracted in paragraph 19(b) of annexure B to the reasons of Bond J, and with which Bond J took no issue. They include where there is an absence of a jurisdictional fact or where the decision was based on a finding of a particular fact that did not exist; or where the decision-maker had information that should have caused further inquiry, or where the evidence shows that it is obvious that there was material readily available to the decision-maker, which was likely to be of critical importance, in relation to a central issue for determination. The applicant did not seek to support the admissibility of the expert evidence on any of those bases.
  1. [9]
    It was submitted on behalf of the appellant that what was said by Bond J in the Australia Pacific LNG case needs to be read in the context that his Honour was there considering an application to review a decision where there had been a contest before the original decision-maker, whereas in this proceeding, his client had no opportunity to put matters before the decision-maker. It was submitted, in effect, that it is important that the Court receive expert opinion evidence not before the decision-maker, from someone who stands in the shoes of a proper contradictor, in order to judge the question of legal reasonableness of the outcome of the decision-making process.
  1. [10]
    It should be remembered that the inability of the applicant to make submissions to the original decision-maker is the product of the statutory scheme. Some development applications are subject to public notification, submission, and merits review appeal rights, and some are not. The development application the subject of the decision in this case was, in accordance with the statutory scheme, one in respect of which the applicant did not have such rights. It would be wrong to use proceedings of this kind in order to put the applicant in a position akin to that it would be in if it had such rights. Indeed, the submission reveals what the real purpose of the expert evidence sought to be relied upon by the applicant is. It is not, as the applicant claims, to test the quality of the decision-maker’s decision, but rather, to place before the Court, expert opinion evidence not available to the decision-maker which itself is not confined to the facts and matters that were before the decision-maker, in an attempt to persuade the Court to come to a different conclusion, with respect to satisfaction of the performance outcomes to that reached by the decision-maker on different material at a different time. In my view such material is not admissible.
  1. [11]
    I should add that there were a myriad of other objections taken to the reports, however, the parties invited me to deal with this objection first, since if I ruled as I have, there would be no need to deal with the balance of the objections.
Close

Editorial Notes

  • Published Case Name:

    Surfers Beachfront Protection Association Inc. (IA 39544) v Council of the City of Gold Coast & Anor

  • Shortened Case Name:

    Surfers Beachfront Protection Association Inc. (IA 39544) v Council of the City of Gold Coast

  • MNC:

    [2021] QPEC 73

  • Court:

    QPEC

  • Judge(s):

    Rackemann DCJ

  • Date:

    19 Nov 2021

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2021] QPEC 7319 Nov 2021-
Primary Judgment[2022] QPEC 328 Jan 2022-
Notice of Appeal FiledFile Number: CA3582/2225 Mar 2022-

Appeal Status

Appeal Pending

Cases Cited

Case NameFull CitationFrequency
Arnold v Minister Administering the Water Management Act 2000 [2013] NSWLEC 73
2 citations
Jump To
Cite 1 - [2013] NSWLEC 73
Cite 2 - [2013] NSWLEC 73
Australia Pacific LNG Pty Ltd v Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport [2019] QSC 124
2 citations
Jump To
Cite 1 - [2019] QSC 124
Cite 2 - [2019] QSC 124
Australian Retailer Association v Reserve Bank of Australia (2005) 148 FCR 446
2 citations
Jump To
Cite 1 - (2005) 148 FCR 446
Cite 2 - (2005) 148 FCR 446
Ferreyra v Brisbane City Council [2016] QPEC 10
2 citations
Jump To
Cite 1 - [2016] QPEC 10
Cite 2 - [2016] QPEC 10

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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