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Hamelech Basodeh Pty Ltd v Gold Coast City Council[2022] QSC 57

Hamelech Basodeh Pty Ltd v Gold Coast City Council[2022] QSC 57

SUPREME COURT OF QUEENSLAND

CITATION:

Hamelech Basodeh Pty Ltd v Gold Coast City Council & Anor [2022] QSC 057

PARTIES:

HAMELECH BASODEH PTY LTD ACN 153 143 410

(applicant)

v

GOLD COAST CITY COUNCIL

(first respondent)

MINISTER FOR RESOURCES

(second respondent)

FILE NO/S:

BS 12335 of 2020

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

12 April 2022

DELIVERED AT:

Brisbane

HEARING DATE:

3 December 2021

JUDGE:

Davis J

ORDER:

  1. It is declared that the application by the Gold Cost City Council to the Minister in October 2020 to acquire the applicant’s land at Pimpama known as “the Greenridge land” is void and of no effect.
  2. The first respondent pay the applicant’s costs of the application.
  3. There be no order as to costs in respect of the second respondent.
  4. The applicant and first respondent have liberty to apply for further orders.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – CONSEQUENCES OF FAILURE TO ACCORD PROCEDURAL FAIRNESS – the applicant owns land – the first respondent formed the view that the land should be compulsorily acquired for environmental purposes – the applicant had rights to object in writing to the proposed resumption – where the applicant objected – where the applicant had a right to be heard in an objection hearing – where the applicant was heard in an objection hearing – where the officer hearing the objection hearing was obliged to produce an objection report to the first respondent – where an objection report was produced – where the officer took into account material not raised in the objection hearing – where the applicant had no notice that material would be relied upon – whether the applicant’s right to be heard has been denied – whether any breach of the obligation to afford procedural fairness is material – whether the Council acted beyond jurisdiction in requesting the Minister to resume the land

LOCAL GOVERNMENT - MEETINGS – NOTICE – where the applicant objected to the first respondent seeking the resumption of its land – where the applicant was entitled to be heard at an objection hearing – where the Council appointed a delegate to conduct the objection hearing – where the delegation was passed by unanimous resolution at a special meeting – where regulations provided for two days’ notice to councillors of a special meeting – where only one days’ notice was given – whether the regulations had been breached – whether breach of the regulations invalidated the resolution

Acquisition of Land Act 1967, s 2, s 5, s 8, s 9

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Civil Proceedings Act 2011, s 10

Judicial Review Act 1991, s 41, s 43

Local Government Act 2009, s 4

Local Government Regulation 2012 (Qld), 256, 257, 258, 271, 277

Vegetation Management Act 1999

Bloss v Brisbane Exposition and Southbank Development Authority (1984) 54 LGRA 403, considered

CC Auto Port Pty Ltd v Minister for Works (1965) 113 CLR 365, considered

CNY17 v Minister for Immigration and Border Protection (2019) 375 ALR 47, cited

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, cited

Commissioner for the ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, followed

Efstathis v Greek Orthodox Community of St George [1989] 1 Qd R 146, cited

Hammercall Pty Ltd v Minister for Transport & Main Roads [2015] QSC 114, cited

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123, followed

Kioa v West (1985) 159 CLR 550, followed

Little v Minister for Land Management [1995] 1 Qd R 190, followed

McLure v Mitchell (1974) 6 ALR 471, cited

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, cited

Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326, cited

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, followed

Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180, cited

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, followed

Minister for Immigration and Multicultural and Indigenous Affairs v SZFDJ [2006] FCAFC 53, cited

Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475, followed

Module2 Pty Ltd v Brisbane City Council (2006) 153 LGERA 120, cited

Myer Queenstown Garden Plaza Pty Ltd v Port Adelaide Corporation (1975) 33 LGRA 70, cited

MZAPC v Minister for Immigration and Border Protection & Anor (2021) 390 ALR 590, followed

Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173, cited

Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1, cited

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, followed

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, followed

Re Refugee Review Tribunal; Ex Parte Aala (2000) 204 CLR 82, considered

Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363, cited

Secretary, Department of Sustainability and Environment (Vic) v Minister for Sustainability, Environment, Water, Population and Communities (Cth) (2013) 209 FCR 215, cited

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, cited

The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, cited

COUNSEL:

G Gibson QC with S McLeod QC for the applicant

J Horton QC with D Favell for the first respondent

No appearance for the second respondent

SOLICITORS:

Collin Biggers & Paisley for the applicant

Clayton Utz Lawyers for the first respondent

No appearance for the second respondent

  1. [1]
    The applicant owns land at Pimpama on the eastern side of the Gold Coast Highway known as “the Greenridge land” (the applicant’s land).  On 15 September 2020, the first respondent (the Council) made an application to the second respondent (the Minister) to resume the applicant’s land for the protection of koala habitat. That process was authorised by the Acquisition of Land Act 1967 (the Acquisition Act).
  2. [2]
    Under challenge by the present application is the decision of the Council to apply to the Minister for the resumption.  The Minister is the second respondent who, consistently with the Hardiman principles,[1] has entered a submitting appearance and has taken no active part in the application.  No costs are sought against the Minister.

Statutory scheme

  1. [3]
    The Acquisition Act provides for the compulsory acquisition of land.  The purposes for which land may be acquired include environmental purposes.  There is no dispute here that the protection of koala habitat is a purpose for which land may be acquired.[2]  Acquisition is ultimately achieved by the decision of the Minister.[3]  Any decision of the Minister is the final result of a process instigated by a “constructing authority”.  Relevantly here, a Local Government such as the Council is a “constructing authority”.[4]
  2. [4]
    Land may be acquired by agreement, but the procedure which leads to compulsory acquisition commences with s 7 which provides, relevantly here:

7 Notice of intention to take land

  1. (1)
    A constructing authority which proposes to take any land shall serve as prescribed by this section the notice (a notice of intention to resume) prescribed by this section.
  1. (2)
    A notice of intention to resume shall be served upon any and every person who to the knowledge of the constructing authority—
  1. (a)
    will be entitled to claim compensation under this Act in respect of the taking of the land concerned; or
  1. (b)
    is a mortgagee of the land . …
  1. (3)
    A notice of intention to resume shall be in writing and shall—
  1. (a)
    state the particular purpose for which the land to be taken is required; and
  1. (b)
    state the description of the land to be taken which description—
  1. (i)
    if the land is described as a separate lot or parcel in a plan of survey registered in the land registry or deposited in the office of the chief executive (surveys)—shall be that description; or
  1. (ii)
    if the land is not described as mentioned in subparagraph (i)—may be made in any manner sufficient to substantially identify the land; and …
  1. (d)
    state that the person to whom the notice is directed may, on or before the date specified in the notice (being a date not less than 30 days after the date of the notice), serve upon the constructing authority at the address set out in the notice an objection in writing to the taking of the land; and
  1. (e)
    in relation to the objection mentioned in paragraph (d)—set out—
  1. (i)
    that the objection must state the grounds of the objection and the facts and circumstances relied on by the objector in support of those grounds; and
  1. (ii)
    that any matter pertaining to the amount or payment of compensation is not a ground of objection; and
  1. (iii)
    that an objector who states in the objection that the objector desires to be heard in support of the grounds of the objection may appear and be heard by the constructing authority or its delegate at the time and place specified in the notice; and …
  1. (f)
    state that the constructing authority is willing to negotiate to acquire by agreement or, failing agreement, to treat as to the compensation to be paid and all consequential matters; and …”[5] (emphasis added)
  1. [5]
    The decision to serve a notice of intention to resume presupposes an antecedent decision by the constructing authority to acquire the land for one of the permitted purposes.  No doubt it is assumed that such a decision is made on evidence and in a reasoned way.  However, the notice of intention to resume need only comply with s 7(3) of the Acquisition Act.  Nothing there requires the constructing authority to identify the material upon which it made its decision or the reasons it made it.
  2. [6]
    Section 7 provides that objections may be made to the resumption.  The objection notice must not only state the grounds of objection, but must also state the “facts and circumstances” supporting the grounds.  The scheme is that an objection must be made on particular grounds to a constructing authority which has already made at least a preliminary decision that the land ought to be acquired and who is not obliged to disclose any more than the purpose[6] for which the land is sought to be acquired.[7]
  3. [7]
    Section 7 provides that an objector may be heard on its objection either by the constructing authority or its “delegate”.[8]  Section 8 limits any hearing to submissions in support of the grounds of objection stated in the notice of objection.[9]
  4. [8]
    Section 8 concerns the manner in which the constructing authority deals with objections. It provides, relevantly:

8 Dealing with objections

  1. (1)
    A person entitled to be served with a notice of intention to resume land who has objected as prescribed to the taking (the objector) shall not be entitled to be heard in support of the grounds of the objection unless the person stated in the objection that the person desired to be so heard and appears, in person or by counsel, solicitor or agent, at the time and place specified in the notice.
  1. (2)
    The constructing authority shall consider the grounds of objection to the taking of any land and—
  1. (a)
    if the objector has been heard by the constructing authority—the matters put forward by the objector in support of such grounds; or
  1. (b)
    if the objector has been heard by the delegate of the constructing authority—the report thereon of such delegate.
  1. (2A)
    If upon such consideration, the constructing authority is of opinion that the resumption should be discontinued or that the notice of intention to resume should be amended, the constructing authority may discontinue the resumption or amend the notice of intention to resume. …”[10]
  1. [9]
    Here, the hearing was conducted by a delegate, Mr Potter.  The process by which Mr Potter was allegedly appointed the Council’s delegate is a ground of challenge.[11]  The delegate prepares an Objection Report which is supplied to the constructing authority.
  2. [10]
    After the objection hearing and the delivery of the Objection Report, the matter is then considered (or more accurately, reconsidered) by the constructing authority.  That is provided by s 9(1).  It provides:

9 Ways in which land is to be taken

  1. (1)
    If within the time stated in the notice of intention to resume no objection is made or if, after due consideration of all objections, the constructing authority is of opinion that the land in question is required for the purpose for which it is proposed to be taken, the constructing authority may apply to the relevant Minister that the land be taken as prescribed by this section. …”
  1. [11]
    If the constructing authority forms an “opinion that the land in question is required for the purposes for which it is proposed to be taken”,[12] an application may be made to the Minister by following the process prescribed by s 9(2), (3) and (4).  The Minister then has power to resume the land. 
  2. [12]
    The process for the Minister is governed by s 9(5), (6), (7) and (8).  There is no need to analyse those provisions.
  3. [13]
    No decision has yet been made by the Minister.  The challenge here is to the decision of the Council to make application to the Minister under s 9(1) of the Acquisition Act.  That decision was made on the basis of the Objection Report and as a result, therefore, of the objection hearing.

Background

  1. [14]
    On 31 October 2019, the Council served on the applicant a notice of intention to resume.  That notice was served pursuant to s 7(1) of the Acquisition Act.  It is not said by the applicant that the notice does not comply with the requirements of s 7(3).
  2. [15]
    The purpose of the acquisition is described in the notice as:

“NOTICE is given under the Acquisition of Land Act 1967 that the City of Gold Coast (Council), as constructing authority, intends to take the land described in the attached Schedule, for the conservation of koalas on land in a Regional Landscape and Rural Production Area.”

  1. [16]
    Annexed to the notice was a document styled “Background Information” and a document styled “Fact Sheet – Land Acquisition”.  The fact sheet can be ignored.  The notice itself contains the information prescribed by s 7(2) and 7(3) of the Acquisition Act. The fact sheet gives further information on the acquisition process.
  2. [17]
    There was no statutory obligation upon the Council to provide the background information document.  However, included in that is:

Acquisition by the City was considered the only available option for protecting the values of the Greenridge land for the following reasons:

  • The property is ideally located within the protected koala habitat network and already supports 188 ha of existing koala habitat. That site also supports 164ha of potential koala habitat which will require restoration to reach its full potential. As the land manager, the City has the skills and resources to progressively restore this large area which will require coordinated planning, delivery and long term maintenance. The City is also well placed to take advantage of government grant programs and environmental offset investment.
  • Whilst the current City Plan provisions for the rural zone limit development in the area to rural lots, the introduction of increased vehicle movements, domestic animals, pests, habitat fragmentation and other incompatible land uses are contrary to the provision of a connected core koala habitat in this area.
  • In 2018, Council introduced a separate charge (levy) for the purposes of acquiring and enhancing koala habitat within the city, with a focus on Coomera. Acquisition of the subject property secures a large high priority land area which is owned by a single entity. This provides economies of scale, both in terms of the acquisition costs and the administrative acquisition processes. Protection of this single landholding will make the single greatest contribution to achieving the conservation area target of 1500ha whilst also representing the most effective use of funds levied by the City.
  • By comparison, other properties within the network are small, do not consolidate existing reserves, and are subject to threatening processes (surrounded by roads, neighbouring properties with domestic animals, habitat fragmentation, firs/weeds/pests, etc).” (emphasis added)
  1. [18]
    In the notice of intention to resume, this appears:

“A delegate of Council will be appointed to hear objections to the proposed resumption.”

  1. [19]
    On 5 December 2019, a notice of objection was provided to the Council by the applicant.  Relevant to the current application are objections four and five.  They are:

“4. The taking of the whole of the Land is inconsistent with the Council’s obligations to act in accordance with the local government principles which underpin the Local Government Act 2009 (Qld).

“5. The taking of the whole of the Land for the conservation of koalas (Purpose) is inconsistent with the State Planning Policy and in particular, the requirements to:

  1. (a)
    protect a key resource area (KRA); and
  1. (b)
    avoid new sensitive land uses and other incompatible land uses within the resource/processing area and the related separation area of a KRA that could impede the extraction of the resource.” (emphasis added)
  1. [20]
    The date for the objection hearing was set as 12 December 2019.  It was proposed that Mr Graham Potter would be the Council’s delegate to conduct the hearing.  However, questions arose as to whether the Council’s authority had been properly delegated to Mr Potter so the objection hearing was adjourned.
  2. [21]
    A special meeting of the Council was called for 13 December 2019 to consider unrelated matters.  On 10 December 2019, an agenda for the meeting was issued.  That agenda did not specify Mr Potter’s delegation as a matter of business for the meeting.  On 12 December 2019, an amended agenda was produced.  That added an item which was “4.  Delegation”.  The amended agenda was then circulated to the councillors.
  3. [22]
    The Council met on Friday 13 December 2019 and resolved, unanimously:

“That Council grant a delegation, as provided by section 257 of the Local Government Act 2009, of the power in section 8 of the Acquisition of Land Act 1967 to enable the Chief Executive Officer[13] to hear and deal with any objections to the taking of land in the Notice of Intention to Resume dated 31 October 2019 served on Hamelech Basodeh Pty Ltd (as the owner of the land). This delegation may be sub-delegated.”

  1. [23]
    There is no doubt that there was power to delegate the function of conducting the objection hearing to Mr Potter.  The power to delegate is regulated by the Local Government Regulation 2012 (the Regulations).  The applicant submits that the delegation was not properly done.
  2. [24]
    Mr Potter conducted the objection hearing on 17 December 2019.  Because the hearing was conducted by a delegate of the Council, it was necessary for an Objection Report to be prepared.[14]  Mr Potter’s report was prepared in draft and sent by covering email to the applicant’s solicitors on 31 August 2020.  The covering email stated:

“The draft is being provided as an opportunity for your client to correct any factual inaccuracies but is not an opportunity to make further submissions.”

  1. [25]
    As earlier observed, the current complaint concerns objections four and five.  As to Objection 4, Mr Potter noted that the applicant provided various documents in support of the objection and noted oral submissions as:

“Objection 4

  • Issuing the NIR for the whole of the land was inconsistent with the LGA.[15]
  • Section 4(1) of the LGA requires that acts must be consistent with the principles of the LGA.
  • The decision to take the Land is inconsistent with the LGA because Council has not identified that the use of funds was value for money, it has not looked at viable alternatives to the taking of the Land, which would allow Council to secure the koala conservation land for the community and it has not looked at alternatives that would cost less.
  • More specifically the ‘Koala Land’ proposal put forward by the Owner was referred to by Council in August 2018 as an innovative approach, but was not investigated by Council.
  • The proposal was to use cleared corridors for human occupation and this would have led to less cost for Council. Under this proposal 85% of the Land would have been available for koala habitat and connection in exchange for an approval to develop the balance 15% of the Land for a koala friendly residential development as per the design concepts put forward in the ‘Koala Land’ document.
  • In summary in order to comply with the principles in the LGA Council should have more rigorously considered other alternatives to securing the Land for koalas, particularly the ‘Koala Land’ proposal.
  • When Mr Potter asked what principles he was referring to, Mr Lonergan stated section 4(2)(a) and (d) of the LGA.” (emphasis added)

And found:

Objection 4

Due to the planning nature of this ground of objection, I have sought advice from the City’s Economy, Planning and Environment Directorate in relation to the history of this matter.

This objection is made on the assertion that the City has not considered viable alternatives to the taking of land and, more specifically, the City has ‘not adequately considered the ‘Koala Land’ proposal’.

The City has considered and assessed a range of statutory and non-statutory mechanisms for securing and protecting the recommended protected koala habitat network. Of these mechanisms, land acquisition was independently identified as the most effective option for large scale and targeted protection of habitat.

Alternative protection mechanisms which were considered included:-

  • Nature Refuge and Coordinated Conservation Agreements;
  • Voluntary Declarations (under the Vegetation Management Act 1999);
  • statutory covenants; and
  • landowner partnerships.

Each of these protections is entered into voluntarily and requires the landowner to continue to manage the conservation values on the land. Nature refuges, Coordinated Conservation Agreements and statutory covenants also require areas of each allotment to be set aside for land uses such as buildings or other uses that are incompatible with conservation. For the Land, these tools would not facilitate the connectivity and restoration of habitat and minimisation of threats required to achieve a consolidated koala habitat. Statutory covenants, landowner partnerships and City Plan mechanisms were identified in independent reports as providing complementary measures to assist with protection, management and restoration of koala habitat within the larger protected koala habitat network.

The landowner’s ‘Koala Land’ proposal to secure koala habitat on the Land relies upon achieving an urban development outcome. Over the past three decades, both the Owner and City officers have undertaken numerous investigations to consider future land use options for the Land. Planning studies have consistently confirmed the Land is subject to numerous constraints and competing State Government interests relating to protection of regional biodiversity values which are incompatible with an urban development outcome. The SEQ Regional Plan (Shaping SEQ) has identified the Land as outside the Urban Footprint and within the Regional Landscape and Rural Production Area, which precludes most forms of urban development and prohibits subdivision below 100 hectares.

In 2018, the Mayor wrote to the Minister for State Development, Manufacturing, Infrastructure and Planning, regarding the securing of suitable koala habitat via an innovative, alternative approach. A copy of this letter is Attachment 6 to this report. This centred on seeking advice from the State Government on whether an urban development outcome with open space dedication on the Land could be achievable. The response from the Minister with is Attachment 7 to this report outlined:-

  • that urban development on the Land is constrained due to its designation under the SEQ Regional Plan (ShapingSEQ);
  • the statutory process that all Councils must follow, if they were to consider amending the planning scheme to rezone any site outside the Urban Footprint for urban purposes; and
  • that it has been agreed that the Council has adequate capacity to accommodate future growth within the existing Urban Footprint.

Council has previously considered a number of industry reports relating to the expansion of the Urban Footprint both in relation to the land and the wider East Coomera area, which have not been supported. Council has also resolved that detailed planning for the East Coomera/Yawalpah Investigation Area (which includes the Land) is of a lower priority, and should only be undertaken in the long term if the need for additional urban land arises.

In February 2019 Council noted that, on the basis of this Ministerial correspondence and previous Council resolutions relating to urban land use of the Land, the feasibility of securing koala habitat via an innovative, alternative approach was minimal.

City officers have undertaken numerous investigation over the past 30 years to consider alternative land use options for the Land, in addition to consideration of alternative protection mechanisms for koalas. Studies have confirmed the Land is subject to numerous constraints and competing State Government interests. Each proposal has been unable to adequately address all constrains and has not been progressed by the Owner or supported by Council.

Based on the above, this ground of the objection cannot be supported.” (emphasis added)

  1. [26]
    As to Objection 5, Mr Potter noted the following oral submissions:

“Objection 5

  • Part of three of the lots that comprise the Land (23 lots in total) have been identified within KRA on State Planning Policy (SPP) mapping. Each lot contains areas within the ‘Resource and Processing Area’ and the ‘Separation Area’ (a copy of the map provided by Mr Lonergan is included in Attachment 3). The subject lots are Lot 6 on RP50178, Lot 15 on SP145312 and Lot 9 on RP903439.
  • A KRA had to be protected by keeping it available and not introducing sensitive uses.
  • The SPP does not allow incompatible land uses within KRAs and land uses within KRAs cannot prevent the extraction of identified resources.
  • The proposed koala conservation purposes could have an adverse effect on the supply of the key resources identified.
  • Mr Chapman stated that the ‘Koala Land’ design for the site could work around the restrictions imposed by the KRAs identified on the mapping.”

And found:

Objection 5

Due to the planning nature of this ground of objection, I have sought advice from the City’s Economy, Planning and Environment Directorate.

During the objection hearing, the Owner’s representative identified Lot 6 on RP50178, Lot 15 on SP145312 and Lot 9 on RP903439 as being within a KRA. Lot 9 on RP903439 is in fact owned by Council and not subject to the proposed resumption.

In addition to the KRA, State interest mapping for Lot 6 on RP50178 and Lot 15 on SP145312 (and indeed the majority of the Land) identifies a number of conflicting constraints. The subject lots are mapped as within an SEQ Regional Biodiversity Corridor, the Coastal Management District and a Koala Assessable Development Area, and as containing SEQ Regional Biodiversity Values and Strategic Cropping Land.

Each of these conflicting State interests must be considered. The State Planning Policy – State interest guideline mining and extractive resources (2016) states that:

The Queensland Government established the State Planning Policy (SPP) to define the specific matters of state interest in land use planning and development. …The SPP does not prioritise one state interest over another and thus provides flexibility for local governments to respond to specific regional and local contexts. This allows for the state interests to be considered as an entirety rather than as individual competing or conflicting priorities.

In relation to the use of the KRA, the SPP also states that:

Identification of a key resource area does not in any way authorise the extraction of the resource or provide a right to establish or operate an extractive industry. Identification of a key resource area rather indicates the importance of protecting the deposit for the future. Local government assesses development applications for extractive industries in accordance with its planning scheme.

The consideration of State interests, including KRAs, is required to be addressed through local government planning processes, namely through its City Plan.

The City of Gold Coast City Plan has identified KRA 65 Jacobs Well Deposit E under the Extractive Resources Overlay Map, but has not included it within the Extractive industry zone. The City Plan states ‘Non committed’ extractive resource areas are those areas within the Resource Area/Processing Area of a Key Resource Area (KRA) and not contained within the Extractive industry zone.

The City Plan Strategic Framework states that ‘Within the Jacobs Well area (where this KRA is located) extraction is limited to the designated committed areas. Beyond the committed areas, the agricultural land resource takes precedence and is preserved for agricultural use’. The City Plan has also characterised this area as a Matter of Local Environmental Significance – biodiversity areas (critical corridor).

The City Plan Specific Outcomes for Extractive Resources states ‘The prudent use of renewable and non-renewable natural resources supports long-term community needs and only occurs where any immediate or long-term environmental and social impacts can be managed to an acceptable level.’

The City Plan zoning and overlay mapping indicates that the Extractive Resource/Key Resource Area is not currently considered a priority for extraction, and would only be supported where environmental and social impacts can be managed to an acceptable level.

The Owner’s submission to the Draft City Plan (prepared in 2014) reported that the Key Resource located in this area had been assessed by its resource consultant Groundwork Plus. The BCI Group submission states “The outcome of this resource assessment is that the KRA located at Greenridge is not considered to be suitable or practical for future exploitation.” This finding appears to be consistent with Council’s current zoning of the Land.

Based on the above, this ground of the objection cannot be supported.” (emphasis added)

  1. [27]
    On 11 September 2020, the applicant’s solicitors wrote to the Council’s solicitors.  As the applicant was invited to do it identified various factual errors in the report and then said this, relevantly:

New material raised in the Draft Objection Report

It appears to us that the following matters in the Draft Objection Report are matters which have not been raised with the Objector previously (New Matters):

  1.  In relation to Objection 1 …[16]
  1. In relation to Objection 4 (see page 6 of the Draft Objection Report), the Draft Objection Report identifies:
  1. (a)
    a number of ‘alternative protection mechanisms: consider by the Council (rather than the taking of the Land); and
  1. (b)
    correspondence between the Council (through the Mayor) and the Minister for State Development, Manufacturing, Infrastructure and Planning regarding the securing of suitable habitat via an innovative, alternative approach and attaches copies if the correspondence between the Council and the Minister.

The Objector has not had an opportunity to properly consider the correspondence between the Council and the Minister, nor the matters raised in that correspondence or make submissions on the effect of the correspondence. In circumstances where new material is raised by the Delegate, the Objector wishes to make further submissions and requests an opportunity to do so.

  1. In relation to Objection 5 (see page 8 of the Draft Objection Report), the Draft Objection Report raises a number of matters in relation to the KRA affecting the Land in in particular, makes reference to an assessment by Groundwork Plus.

Those matters were not addressed by the Objector in its objection or at the objection hearing. In circumstances where new material is raised by the Delegate, the Objector wished to make further submissions and requests an opportunity to do so.

  1. In relation to Objection 5 (see page 9 of the Draft Objection Report), the Draft Objection Report states that the “Department of Transport and Main Roads has commenced discussions with the City and other stakeholders to ensure environmental and other planning constraints are addressed during the design and constructions of the Coomera Connector. This will provide permeability for koala movement across the study area”.

Those matters were not addressed by the Objector in its objection or at the objection hearing. In circumstances where new material is raised by the Delegate, the Objector wishes to make further submissions and requests an opportunity to do so. …

It is appropriate to afford the Objector an opportunity to properly consider and respond to the new matters raised for the firs time in the Draft Objection report. We consider that a failure to do so would amount to a denial of procedural fairness and would impact on the validity of the objection process.

In the circumstances, the Council should provide an opportunity for the Objector to consider the New Matters and make submissions on the new matters.

We request that the Council provide copies of all relevant material relating to the New Matters to us on or before 4 pm on Friday 25 September 2020 and permit the Objector until 4 pm on Friday 9 October 2020 to make submissions on the New Matters.”

  1. [28]
    By letter of 14 September 2020, the Council’s solicitors responded.  The only response relevant to the present application was in relation to Objection 5:

“4. The requirement to protect the Key Resource Area was specifically referred to in the written objection. This is not a new issue raised by the delegate and this is not new material. The Groundwork Plus assessment was procured by BCI Group (your client) and was presented to the City by your client’s representatives in a submission regarding the City of Gold Coast Planning Scheme. Your client had an opportunity to comment on the Groundwork Plus assessment as part of its objection.”

  1. [29]
    There was no response on behalf of the Council to the assertion by the applicant’s solicitors that the applicant ought to have an opportunity to make submissions about the alternative measures that the Council said it considered in dealing with Objection 4.
  2. [30]
    On 14 September 2020, Mr Potter produced his final Objection Report.  It was for present purposes identical to the draft. 
  3. [31]
    On 15 September 2020, the Council applied to the Minister to resume the land.

The present application

  1. [32]
    The application is brought pursuant to s 43 of the Judicial Review Act 1991 (the JR Act) and s 10 of the Civil Proceedings Act 2011.  Section 43 of the JR Act sits within Part 5.  Part 5 concerns “prerogative orders and injunctions” and replaces the writs of mandamus, prohibition and certiorari with a new procedure known as an “application for review”.[17]  Part 5 raises considerations as to whether the relief sought would have been available through the relevant prerogative writ.[18]
  2. [33]
    Part 3 of the JR Act concerns orders of review and reflects the modern scheme of judicial review of “decisions made under an enactment” originally introduced by the Commonwealth reforms of the 1970s.[19]
  3. [34]
    Here, the applicant seeks declarations pursuant to Part 5 in these terms:

“1. Pursuant to s 43 of the Judicial Review Act 1991 (Qld) and s 10 of the Civil Proceedings Act 2011 (Qld), a declaration that the decision made by the first respondent, on 15 September 2020, to apply to the second respondent pursuant to s 9(1) of the Acquisition of Land Act 1967 (Qld) for the taking of land described as:

  1. (a)
    Lots 6, 7, 8, 11, 12, 13, 14, 15, and 16 on RP50178;
  1. (b)
    Lot 15 on SP145312;
  1. (c)
    Lot 121 on RP903491; and
  1. (d)
    Lot 71 on Crown Plan W31402 (collectively, the Land),

Is void and of no effect.

2. Pursuant to s 43 of the Judicial Review Act 1991 (Qld) and s 10 of the Civil Proceedings Act 2011 (Qld), a declaration that the application which the first respondent purported to make to the second respondent in or around October 2020 pursuant to s 9(1) of the Acquisition of Land Act 1967 (Qld) is void and of no effect.

3. The first respondent and/or the second respondent pay the applicant’s costs of and incidental to the proceedings.”

  1. [35]
    By extensive particulars, the applicant says that the decision to apply to the Minister to resume the land is void because:
  1. procedural fairness was not offered in relation to the rejection of Objections 4 and 5;
  2. Mr Potter was not properly appointed the delegate of the Council for the purposes of conducting the objection hearing and producing the Objection Report because the resolution of the Council appointing him a delegate was not made in compliance with the Local Government Regulation 2012 (the Regulation).
  1. [36]
    Any potential issues raised by the fact that the applicant brought its application under Part 5 of the JR Act rather than Part 3, are avoided by concessions made by Mr Horton QC who appeared with Mr Favell for the Council:

“MR HORTON: Yes. Well, the way it’s been framed is a part 5 case does arise, but we accept it’s challengeable in the manner they challenge it, which is they seek declarations.”

And:

“MR HORTON: And we accept that the errors they raise, if made out, would be good to found issue of such relief.”

  1. [37]
    The Acquisition Act deals in part with the obligations of a constructing authority to afford natural justice to an objector.  It does this by prescribing what must be in a notice of intention to resume and it prescribes the way in which an objection may be taken and how that objection may be advanced and ultimately determined.
  2. [38]
    What is in issue here is the obligation of the constructing authority to afford natural justice in relation to one stage of the process, namely the objection hearing.  It is accepted by the Council that if there has been a breach of the rules of procedural fairness in the objection hearing and the breach is material, then the Council’s decision to make the report to the Minister is invalid.
  3. [39]
    It is well-established that the obligation of a decision-maker to afford natural justice is determined upon the construction of the statute conferring the power to make the decision.  It is the statute which confers the jurisdiction to make the decision and the question on any review is whether the decision is made within the power.  In Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation,[20] Kitto J observed that the duty to afford natural justice and the extent of the duty depends upon the “statutory framework” which his Honour explained as “… the express and implied provisions of the relevant Act and the inferences of legislative intention to be drawn from the circumstances to which the Act was directed and from its subject matter”.[21]  The obligation to afford procedural fairness is an implied condition upon the exercise of the power.[22]
  4. [40]
    The judicial review of an administrative decision involves the determination of whether the decision made is affected by jurisdictional error.  Ultimately, the question is whether the decision is made within the grant of power conferred by the statute.  That question involves not only the identification of the duty to afford procedural fairness and its limits in the particular circumstances of the exercise of the power, but also whether non-compliance nullifies the statutory authority to make the decision.[23]  This involves consideration of the materiality of any breach.[24]
  5. [41]
    In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam,[25] Gleeson CJ observed:

“Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.

No practical injustice has been shown. The applicant lost no opportunity to advance his case.”[26]

  1. [42]
    The principles were explained in the joint judgment of Kiefel CJ, Gageler and Keane JJ in Hossain v Minister for Immigration and Border Protection & Anor[27] as:

“Just as identification of the preconditions to and conditions of an exercise of decision-making power conferred by statute turns on the construction of the statute, so too does discernment of the extent of non-compliance which will result in an otherwise compliant decision lacking the characteristics necessary to be given force and effect by the statute turn on the construction of the statute. The question of whether a particular failure to comply with an express or implied statutory condition in purporting to make a particular decision is of a magnitude which has resulted in taking the decision outside the jurisdiction conferred by the statute cannot be answered except by reference to the construction of the statute.”[28]

  1. [43]
    How that principle applies in the context of an alleged breach of the obligation to afford procedural fairness has been considered by the High Court on various occasions[29] most recently in MZAPC v Minister for Immigration and Border Protection & Anor.[30]
  2. [44]
    In relation to both Objection 4 and Objection 5, the applicant submits that it had no notice that certain material was to be relied upon by Mr Potter in drawing the conclusions he did in the Objection Report.  Had it been on notice, it would have sought to answer that material.  While, ultimately, the issue is whether any breach renders the exercise of power one made beyond jurisdiction, as explained in the joint judgment of Kiefel CJ, Gageler, Keane and Gleeson JJ in MZAPC, that will normally be demonstrated in these circumstances:

“Bearing the overall onus of proving jurisdictional error,[31] the plaintiff in an application for judicial review must bear the onus of proving on the balance of probabilities all the historical facts necessary to sustain the requisite reasonable conjecture. The burden of the plaintiff is not to prove on the balance of probabilities that a different decision would have been made had there been compliance with the condition that was breached. But the burden of the plaintiff is to prove on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition.”[32] (emphasis added)

  1. [45]
    Notwithstanding the passage quoted above, the applicant submitted that there was no onus upon it to demonstrate that the alleged breach of the rules of procedural fairness could have affected the result.  It relied upon a statement of McHugh J in Re Refugee Review Tribunal; Ex Parte Aala:[33]

[104] Not every breach of the rules of natural justice affects the making of a decision. The decision-maker may have entirely upheld the case for the party adversely affected by the breach; or the decision may have turned on an issue different from that which gave rise to the breach of natural justice. Breach of the rules of natural justice, therefore, does not automatically invalidate a decision adverse to the party affected by the breach. This principle was acknowledged by this Court in Stead v State Government Insurance Commission when it said that ‘not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial.’ Nevertheless, once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome because ‘[i]t is no easy task for a court … to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome.’ In this case, however, the denial of natural justice did not affect the outcome.”[34] (footnotes omitted, underlining added)

  1. [46]
    In MZAPC, Kiefel CJ, Gageler, Keane and Gleeson JJ in the passage reproduced at paragraph [44] of these reasons, concluded that the onus fell on the party attacking the decision.  Justices Gordon, Steward and Edelman dissented on that point.  The law is as stated by the majority.
  2. [47]
    A requirement of a reviewing court to determine that a different decision would have been made is to invite a review of the merits of the decision.  A requirement of a reviewing court to determine whether a different decision could have been made focuses attention on the decision-making process.
  3. [48]
    The objection hearing is the objector’s opportunity to speak “in support of the grounds of the objection” specified in the notice of objection.[35]  The constructing authority is bound to hear the objection and must consider the grounds of objection and “the matters put forward by the objector in support of [the] grounds”.[36]  The scope of “the matters in support of the grounds of the objection” which can be advanced, is therefore limited by the grounds of objection.  The statutory scheme is that the objector must state its grounds.  The objector may then make submissions at an objections hearing, but only on matters “in support of the [stated] grounds”.
  4. [49]
    In the context of the scheme of the Acquisition Act, the purpose of the objection hearing is to afford the objector the opportunity of advocating in favour of the grounds of objection so as to persuade the constructing authority to depart from its preliminary decision to resume the land.
  5. [50]
    Subject to statutory provisions to the contrary, the requirement to afford procedural fairness will normally require that the person affected by the decision must be given “an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon [the question]”.[37]
  6. [51]
    That principle was applied in Commissioner for the ACT Revenue v Alphaone Pty Ltd[38] where the Full Court of the Federal Court held:

“It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.”

And later:

“Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question.”

  1. [52]
    Those principles have been consistently approved and applied.[39]
  2. [53]
    As already observed, the statutory scheme under the Acquisition Act provides for the constructing authority to make an initial decision, then for the person affected to state grounds of objection and for there to be an objection hearing.  Further, as already observed, it is the objection hearing stage where the objector has the opportunity to argue its case.  By that point, the constructing authority has already taken a position.  In my view, the constructing authority is obliged to afford the objector the opportunity to deal with relevant matters adverse to its interests and to identify any issue which might be critical to its ultimate decision.  Any breach of that obligation will render the decision beyond power if the applicant establishes that a different decision could have been made if there had been compliance.
  3. [54]
    The attack upon Mr Potter’s delegation turns on questions of construction of the Regulations.

Objection 4

  1. [55]
    Objection 4[40] concerns the “local government principles” as identified in s 4 of the LGA which provides:

4 Local government principles underpin this Act

  1. (1)
    To ensure the system of local government is accountable, effective, efficient and sustainable, Parliament requires—
  1. (a)
    anyone who is performing a responsibility under this Act to do so in accordance with the local government principles; and
  1. (b)
    any action that is taken under this Act to be taken in a way that—
  1. (i)
    is consistent with the local government principles; and
  1. (ii)
    provides results that are consistent with the local government principles, in as far as the results are within the control of the person who is taking the action.
  1. (2)
    The local government principles are—
  1. (a)
    transparent and effective processes, and decision-making in the public interest; and
  1. (b)
    sustainable development and management of assets and infrastructure, and delivery of effective services; and
  1. (c)
    democratic representation, social inclusion and meaningful community engagement; and
  1. (d)
    good governance of, and by, local government; and
  1. (e)
    ethical and legal behaviour of councillors, local government employees and councillor advisors.”
  1. [56]
    Objection 4, together with the submissions made at the objection hearing,[41] complains that the Council has breached the local government principles by not considering “viable” alternatives to the compulsory acquisition of the applicant’s land.  Mr Potter, in the Objection Report, specified four alternatives to resumption and gave quite detailed reasons why those were not suitable.  The complaint on this aspect of the application, put shortly, is that Mr Potter gave no notice to the applicant:
  1. that he had considered, or would consider, those alternatives;
  2. the reasons why he favoured resumption.
  1. [57]
    The Council submits that there is nothing in the LGA or otherwise obliging it to consider alternatives to resumption.  It is unnecessary to determine whether the Council is right in that submission. 
  2. [58]
    A decision-maker, subject to the statute granting the power, is entitled to determine for itself what matters it considers relevant to its decision and what weight it should place on any factors it considers relevant.  The statute may compel the consideration of certain matters and may prohibit the consideration of others.  Those principles underpin well-recognised grounds of judicial review.[42]
  3. [59]
    In considering Objection 4, the Council has accepted that the existence or otherwise of viable alternatives to resumption is a matter relevant to its consideration and has gone on to consider those alternatives.
  4. [60]
    It is no answer for the Council to say that, as a matter of law, it need not have considered alternatives.  The fact is that it did, and the question which is posed by the application is whether, in the consideration of those factors, it afforded procedural fairness.
  5. [61]
    The Council further submits that it was the applicant who raised the issue of alternatives to resumption of the land, in particular, its Koala Land plan.  The Council says that:
  1. it considered the Koala Land proposal; and
  2. it considered other alternatives; therefore
  3. it has done what the applicant asked it to do.
  1. [62]
    True it is that the Council has taken up the challenge to consider alternatives.  It is no answer to the applicant’s case to say that alternatives have been considered and rejected.  The issue is whether procedural fairness was afforded in relation to those considerations.
  2. [63]
    The Council also relies upon Bloss v Brisbane Exposition and Southbank Development Authority.[43]  There, Vasta J considered an application challenging decisions made by the Brisbane Exposition and Southbank Development Authority to acquire land for the purposes of Expo 88.  The owner of a particular property, which had some historic value, proposed to the Authority that she would make it available for the purposes of Expo 88 after which possession could be returned to her.  That offer was rejected on this basis:

“There are several reasons for the authority having adopted this policy; the main one of which is the need to ensure that the authority will be able to rationalize usage of the site after Expo ’88 which may involve realignment of roadways and changes of existing blocks. It is also, of course, important that the authority, as an agent of the government, is seen and, in fact, does deal with all property owners on the same basis, and in this case that means acquisition of all properties.”

  1. [64]
    Justice Vasta followed CC Auto Port Pty Ltd v Minister for Works[44] where this was said:

“Assuming that a local authority has a qualified power to resume land for specified purposes and that it exercises its power honestly for one or more of those purposes there can be no objection merely on the ground that the resumption might have been effected pursuant to some other power which it is suggested, or thought, might have been more appropriately exercised.”

  1. [65]
    His Honour then ultimately found “… it is not for the court to inquire as to whether some other means within the authority’s power could have been more properly employed”,[45] and dismissed the application. 
  2. [66]
    The question on this application is not whether any alternatives are preferable to resumption.  As earlier observed, the Council has accepted that the consideration of alternatives is a valid consideration.  The Council has actually considered them and the issue is whether, before considering the specific factors it did, the applicant should have been heard on those alternatives.
  3. [67]
    The complaint underlying Objection 4 was that viable alternatives had not been considered.  The applicant put up an alternative which ought to be considered; the Koala Land proposal.  The Council did not assert that it was not obliged to consider viable alternatives to resumption.  It accepted that it did.  It, therefore, partially accepted the assertions in Objection 4.  However, it then embarked upon an inquiry about “viable alternatives”.
  4. [68]
    It is evident from the Objection Report concerning Objection 4:
  1. the Council considered:
  1. (a)
    nature, refuge and coordinated conservation agreements;
  1. (b)
    voluntary declarations under the Vegetation Management Act 1999;
  1. (c)
    statutory covenants;
  1. (d)
    landowner partnerships;
  1. the Council considered that each of these alternatives required landowners to voluntarily set aside land;
  2. the measures would not “facilitate the connectivity and restoration of habitat and minimisation of threats” in order to appropriately provide a koala habitat;
  3. there are independent reports which considered these measures;
  4. the “Koala Land” proposal relies upon achieving an urban development outcome;
  5. there have been planning studies and investigations which are incompatible with an urban development outcome;
  6. the South East Queensland Regional Plan identifies the land as outside the Urban Footprint;
  7. investigations in 2018 with the government as to whether the land could be used for urban purposes, was negative;
  8. various industry reports were considered in relation to the expansion of the Urban Footprint;
  9. these reports have not been supported;
  10. previous Council resolutions concerning the urban use of the land were considered;
  11. Logan City officers have undertaken investigations over the last 30 years which have not identified alternative land use options for the land.
  1. [69]
    Having accepted that it should consider viable alternatives to resumption, the Council was obliged, in my view, to at least give the applicant an opportunity to be heard on the alternatives it was considering.  It did not, and it failed to afford fairness to the applicant.
  2. [70]
    The Council submits that if there has been a breach of the rules of procedural fairness, it is not a “material” breach and therefore one which does not constitute jurisdictional error.  I reject that submission.  As earlier observed, the question is not whether the making of submissions would have altered the Council’s decision.  Such an inquiry would effectively amount to a merits review.  The question is whether or not the decision “could” have been different had the applicant been heard. 
  3. [71]
    Here, for reasons explained, the Council had, before serving the notice of intention to resume the land, made a decision, at least on a preliminary basis that the land should be taken.  In the Background Information document which accompanied the notice of intention to resume, the Council explained that resumption was the “only available option for protecting the [environmental] values of [the land].”
  4. [72]
    Once it accepted that it should consider alternatives to resumption, the Council set about to compare the advantages and disadvantages of resumption with the advantages and disadvantages of other options.  It identified other options but did not give the applicant the opportunity to address them.  The applicant proposed the Koala Land scheme but was denied the opportunity to address the other alternatives.
  5. [73]
    Having embarked on a process of examining possible alternatives to resumption and assuming that the Council was open to persuasion, submissions extolling the virtues of the nominated alternatives could have affected the result.
  6. [74]
    The Council has denied the applicant procedural fairness in relation to Objection 4 in a material way and, consequently, acted beyond jurisdiction.

Objection 5

  1. [75]
    This objection is based on the fact that part of the applicant’s land was identified as a Key Resource Area (KRA) and that pursuant to the State Planning Policy, the resources on the land should be kept available, and the land should not be directed to sensitive uses.  The objection was rejected on various grounds.  There was reference in the Objection Report to the opinions expressed in a report prepared by “Groundwork Plus” dated 25 July 2014 (the Groundwork Plus report). 
  2. [76]
    Groundwork Plus is a firm of consultants who were retained on behalf of the applicant.  The Groundwork Plus report was commissioned to bolster a submission made by the applicant to the Council concerning the making of a new City Plan.  The applicant sought to have the City Plan amended so as to include the land in the “Urban Footprint”.  Various submissions were made by the applicant which ultimately were unsuccessful.  The applicant’s land was not brought within the Urban Footprint.
  3. [77]
    It was always unlikely that the applicant’s land would be included within the Urban Footprint if it was a KRA.  That was the point of the Groundwork Plus report.  The authors of the report considered the commercial viability of the resource on the land which was mineral sand.  The report included:

“In summary, and as is clearly identified in this pre-feasibility review, this project faces barriers which are considered insurmountable and un-mitigatable from an operational perspective, and resultantly is considered of high risk from an operational and development perspective. More suitable, higher quality, larger quantum, lower risk alternatives exist elsewhere in the KRA 65, and based on the information provided, it is submitted that the changes of receiving development approval on this site are extremely low to non existent.”

  1. [78]
    Therefore, in circumstances where Objection 5 raised the KRA as part of the subject land, the Council has, it seems, relied on a six year old report which, on one possible reading of the Objection Report, directly undermines Objection 5 without alerting the applicant of its intention to do so.
  2. [79]
    The Council submits that the Groundwork Plus report is referred to in the Objection Report only as supporting an independent line of reasoning which resulted in the dismissal of Objection 5.  That line of reasoning is:
  1. the relevant part of the applicant’s land is mapped within the SEQ Regional Biodiversity Corridor, the Coastal Management District and a Koala Assessable Development Area and as containing SEQ Regional Biodiversity Values and Strategic Cropping Land;
  2. the inclusion of the land as KRA in the State Planning Policy does not authorise the extraction of the resource or provide a right to establish or operate an extractive industry;
  3. the consideration of State interests (including KRAs) is addressed through processes, including the City Plan;
  4. the Gold Coast City Plan has identified the KRA but not included it within extractive industry zone;
  5. the City Plan’s strategic framework limits extraction in the area of the land to committed areas and states that beyond those areas the priority is to preserve the land for agricultural use;
  6. the City Plan characterises the area as a matter of local environment significance - biodiversity area;
  7. the City Plan limits extractive industries to circumstances where long-term environmental and social impacts can be managed; so
  8. the City Plan zoning is such that the KRA is unlikely to be approved for extraction.
  1. [80]
    Against that reasoning, the Objection Report then notes that the Groundwork Plus report concluded that the KRA is not practicable for future exploitation, which the Objection Report says is a finding “consistent with Council’s current zoning of the land”.
  2. [81]
    It is well-established that a failure to give a party an opportunity to answer material before the decision-maker will not be a breach of the rules of natural justice if the decision-maker did not take the material into account.[46]  Here, the Groundwork Plus report is mentioned in the Objection Report.  While the report has clearly been considered by Mr Potter, it does not necessarily follow that it was an operative consideration in drawing the conclusions he did.
  3. [82]
    The Objection Report is a set of reasons for rejecting the applicant’s objections to the resumption.  Reasons “… are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern [error]”.[47]
  4. [83]
    What can be inferred from a fair reading of the Objection Report is that town planning decisions have been made over a lengthy period which make it unlikely that the resource on the land will be permitted to be extracted.  That conclusion is as a result of the City Plan and various other policies.  The reference to the Groundwork Plus report is simply to observe that the authors of that report gave opinions consistently with the planning decisions which had been made.
  5. [84]
    The most that the applicant could have done, if it was given the opportunity to do so, would be to negative the Groundwork Plus report and demonstrate that the extraction of the KRA was viable.  That would then leave the Council still in the position where the extraction of the KRA was against the town planning decisions.  In reality, the Council, in rejecting Objection 5, was relying upon the town planning decisions it had made, not the Groundwork Plus report.  Submissions or evidence contradicting the Groundwork Plus report could not have affected the conclusions reached by Mr Potter.
  6. [85]
    In my view, if there has been a breach of the rules of natural justice in not alerting the applicant to the fact that the Groundwork Plus report would be considered, the breach is not material, and I would not set aside the decision of the Council to seek resumption, based on Objection 5.

Was the delegation validly made?

  1. [86]
    Chapter 8 of the Regulations deals with local Government meetings.  The applicant submits that:
  1. on a proper construction of regs 258 and 277, a notice of meeting enclosing an agenda which listed the delegation as an item of business must be provided to the councillors at least two days before the meeting;
  2. a failure to do so renders the resolution which made the allegation invalid.
  1. [87]
    There is no factual dispute.  The only notice which enclosed an agenda which mentioned the delegation was given on the day before the meeting.
  2. [88]
    There are several regulations which bear on the question.  These are regs 256, 257, 258, 271 and 277: 

256  Agenda of post-election meetings

  1. (1)
    The matters a local government must consider at a post-election meeting include the day and time for holding other meetings.
  1. (2)
    A post-election meeting is the meeting mentioned in section 175(1) of the Act. …

257  Frequency and place of meetings

  1. (1)
    A local government must meet at least once in each month.
  1. (2)
    However, the Minister may, after written application by a local government, vary the requirement under subsection (1) for the local government.
  1. (3)
    All meetings of a local government are to be held—
  1. (a)
    at 1 of the local government’s public offices; or
  1. (b)
    for a particular meeting—at another place fixed by the local government, by resolution, for the meeting.

258  Notice of meetings

  1. (1)
    Notice of each meeting or adjourned meeting of a local government must be given to each councillor at least 2 days before the day of the meeting unless it is impracticable to give the notice.
  1. (2)
    The notice must state—
  1. (a)
    the day and time of the meeting; and
  1. (b)
    for a special meeting—the business to be conducted at the meeting.
  1. (3)
    A special meeting is a meeting at which the only business that may be conducted is the business stated in the notice of meeting.
  1. (4)
    Despite subsection (1), the notice must be given to each councillor of an indigenous regional council at least 4 days before the day of the meeting unless it is impracticable to give the notice.
  1. (5)
    The notice may be given to a councillor by sending the notice to the councillor electronically.

271  What div 3 is about

  1. (1)
    This division is about the meetings of a local government (including meetings of its committees).
  1. (2)
    In this division meeting means—
  1. (a)
    a meeting of the local government; or
  1. (b)
    a meeting of a committee of a local government.

277  Public notice of meetings

  1. (1)
    A local government must, at least once in each year, publish a notice of the days and times when—
  1. (a)
    its ordinary meetings will be held; and
  1. (b)
    the ordinary meetings of its standing committees will be held.
  1. (2)
    The notice mentioned in subsection (1) must be published—
  1. (a)
    in a newspaper circulating generally in the local government’s area; and
  1. (b)
    on the local government’s website.
  1. (3)
    The local government must display in a conspicuous place in its public office a notice of the days and times when—
  1. (a)
    its meetings will be held; and
  1. (b)
    meetings of its committees will be held.
  1. (4)
    The local government must immediately notify any change to the days and times mentioned in subsection (1) or (3) in the same way as the days and times were previously notified.
  1. (5)
    A list of the items to be discussed at a meeting mentioned in subsection (3) must be available for inspection at the time the agenda for the meeting is made available to councillors.
  1. (6)
    The local government may publish the list of items to be discussed at a meeting, including any details or documents relating to an item, on the local government’s website.
  1. (7)
    Subsection (5) does not affect the right to discuss or deal with, at any meeting, items arising after the agenda for the meeting is made available to councillors.”[48]
  1. [89]
    There is a distinction drawn between a special meeting and what I will call a “scheduled meeting”.  Once a local Government election is decided, there must be a “post-election meeting”.[49]  Thereafter, reg 257 requires meetings “at least once a month”.  The monthly meetings are what I have called the “scheduled meetings”.  “Special meetings” are those which are called for the purposes of dealing with specific issues which have arisen.[50] 
  2. [90]
    Regulation 277 does not, in my view, concern special meetings.  It only concerns scheduled meetings.  This is plain from sub-regs (1) and (2). 
  3. [91]
    Regulation 258 concerns both scheduled meetings and special meetings.  That is clear from sub-regs 258(2) and (3).
  4. [92]
    There are sound policy reasons why, in relation to scheduled meetings, there must be public advertising as provided by reg 277.  The scheduled meetings are those which the local authority must hold.  They must be held in public and constituents may attend. 
  5. [93]
    Special meetings are different.  They only concern specific issues which have arisen.  While the meetings must be held in public, they are not statutorily mandated.  Regulation 277 addresses the public right to participate in scheduled meetings. 
  6. [94]
    Regulation 258 meets a different need.  That regulation concerns notice to councillors.  Notice is necessary so that councillors know to attend a meeting and have sufficient time to prepare for it. 
  7. [95]
    Here, the special meeting has been properly called.  More than two clear days’ notice was given.  However, the only business which can be conducted as a special meeting “is the business stated in the notice of meeting”.  Given that the only notice of meeting which specified the delegation as an item of business was served within two days of the meeting, that matter of business was not before the meeting.
  8. [96]
    The Council sought to rely on reg 277(7) and argued that notwithstanding non-compliance with reg 258, the Council could deal with an “item” not on the agenda if the “item” was one “arising after the agenda for the meeting is made available to councillors”.  Argument ensued as to the proper construction of reg 277(7) and how it was that an item would “arise”.  The applicant submitted that an item arose when the facts giving rise to it occurred.  Therefore, the need to make the delegation having arisen well before the notice of meeting was given, it was not a matter caught by reg 277(7).  The Council argued that a matter arose once it was determined to be dealt with at a meeting.  The decision having been made to place it on the agenda after the notice and agenda was sent, it was an “item arising after the agenda for the meeting is made available to councillors”.
  9. [97]
    Regulation 277(7) refers to reg 277(5).  Regulation 277(5) in turn refers to reg 277(3).  Regulation 277(3) requires the local authority to display a notice of meeting.  They are the meetings referred to in reg 277(1), ie scheduled meetings.  Regulation 277(7) has no application here.  The meeting which was called was a special meeting.  The only business which could be done at the special meeting was that specified in a notice given within the time specified by the Regulations.  That was not done and consequently, the resolution was passed contrary to the Regulations.
  10. [98]
    An executive decision which is made contrary to statute is not void unless on a proper construction of the statute, there is a legislative intention to invalidate the decision for non-compliance.[51]  Often it will be appropriate to consider the degree of departure from the statutorily prescribed procedure in order to determine validity of the administrative decision made.[52]
  11. [99]
    The applicant points to common law principles governing meetings where resolutions have been invalidated as proper notice of the meeting was not given.[53]  In that context, the applicant submits that the breach is significant as it lessens the statutorily prescribed period of notice over which an attendee at the meeting has to prepare to participate in the business of the meeting.
  12. [100]
    The respondent submits that:
    1. (a)
      the meeting itself was validly called;
    2. (b)
      the short notice by adding the delegation issue to the agenda breached the regulation by only 24 hours;
    3. (c)
      there is no statutory intention which can be discerned to invalidate the resolution in those circumstances.
  13. [101]
    The meeting proceeded and the delegation resolution was passed unanimously.  The only inference which is open is that any notice requirement was waived by the councillors.  They considered they could deal with the issue and they did.  In my view, the real issue is whether, on a proper construction of the Regulations, the councillors are prevented from meeting and deciding a matter not properly on the agenda unless the notice provisions are strictly complied with.
  14. [102]
    In the course of scheduled meetings, that might be so because the Regulations require public notice to be given.  However, reg 277(7) suggests otherwise.  That is not necessary to decide.
  15. [103]
    With special meetings there are no advertising requirements.  The notice provisions are designed to ensure that councillors have proper opportunity to participate in the meeting.  Where the councillors participate, notwithstanding the short notice, and resolve unanimously to pass a particular resolution, there is no statutory intention that such a resolution would be invalidated.
  16. [104]
    While the motion to delegate to Mr Potter the power to conduct the objection hearing was not properly before the special meeting, the unanimous decision of the councillors delegating the power to him is a valid resolution.

Conclusions

  1. [105]
    The applicant has made out its case that the Council has made the decision to request the Minister to resume the land without affording procedural fairness in relation to Objection 4.  It is therefore entitled to the declaration it seeks.
  2. [106]
    The applicant has failed to have the delegation of power to Mr Potter declared invalid and it has failed to make out its challenge as to the dismissal of Objection 5.
  3. [107]
    Questions now arise as to how the Council should proceed.  Is it sufficient for Mr Potter to just reconsider Objection 4?  Should a new hearing on all objections be considered given that the decision to seek resumption has failed?
  4. [108]
    Argument has not been heard on these further issues.  It would be undesirable for fresh proceedings to be commenced to determine these matters if they cannot be resolved by the parties.  It is appropriate to give liberty to apply for further orders in the current application.
  5. [109]
    The parties agreed at the hearing of the application that costs should follow the event.  The applicant has obtained the declaration which it sought so it should have its costs.

Orders

  1. It is declared that the application by the Gold Cost City Council to the Minister in October 2020 to acquire the applicant’s land at Pimpama known as “the Greenridge land” is void and of no effect.
  2. The first respondent pay the applicant’s costs of the application.
  3. There be no order as to costs in respect of the second respondent.
  4. The applicant and first respondent have liberty to apply for further orders.

Footnotes

[1]The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13.

[2]Acquisition of Land Act 1967, s 5, Sch 1, Pt 2.

[3]Acquisition of Land Act 1967, s 9(6).

[4]Acquisition of Land Act 1967, s 2, Sch 2 Dictionary, definition of a “constructing authority” and see s 5(1)(b) which identifies the purposes for which a Local Government may seek acquisition.

[5]Statutory notes omitted.

[6]And some formal matters.

[7]See generally Little v Minister for Land Management [1995] 1 Qd R 190, 200.

[8]Acquisition of Land Act 1967, s 7(3)(e).

[9]Acquisition of Land Act 1967, s 8(1).

[10]Sections 7(4AA), (4AB), (4A) and (4B) deal with serving an amended notice of intention to resume.  That is not relevant here and those sub-sections do not appear in paragraph [4] of these reasons.

[11]See paragraph [35] of these reasons.

[12]Acquisition of Land Act 1967, s 9(1).

[13]Mr Potter.

[14]Acquisition of Land Act 1967, s 8(2).

[15]Local Government Act 2009.

[16]Paragraphs 1 and 2 are not relevant here.

[17]Informations in the nature of quo warranto are abolished by s 42, but obviously not relevant here.

[18]Judicial Review Act 1991, s 41(2).

[19]Administrative Decisions (Judicial Review) Act 1977 (Cth).

[20](1963) 113 CLR 475.

[21]At 504; followed in Kioa v West (1985) 159 CLR 550 at 584-5 and see Hossain v Minister for Immigration (2018) 264 CLR 123 at [23].

[22]Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 and see Kioa v West (1985) 159 CLR 550 at 627.

[23]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1, Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [24]-[31].

[24]Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 and Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421.

[25](2003) 214 CLR 1.

[26]At [37]-[38].

[27](2018) 264 CLR 123.

[28]At [27].  See also Minister for Immigration and Citizenship v SZIZO & Anors (2008) 238 CLR 627 at [35]-[36] and CNY17 v Minister for Immigration and Border Protection (2019) 375 ALR 47.

[29]See Re refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 and Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421.

[30](2021) 390 ALR 590.

[31]Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at 616 [67], 623 [91]-[92]; Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at 185 [24]; BVD17 v Minister for Immigration and Border Protection (2019) 93 ALJR 1091 at 1100 [38].

[32]MZAPC v Minister for Immigration and Border Protection & Anor (2021) 390 ALR 590 at [39].

[33](2000) 204 CLR 82.

[34]At [104]; and see Gageler and Gordon JJ in SZMTA.

[35]Acquisition of Land Act 1967, s 8(1).

[36]Acquisition of Land Act 1967, s 8(2)(a).

[37]Kioa v West (1985) 159 CLR 550 at 628.

[38](1994) 49 FCR 576.

[39]SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [29], Minister for Immigration and Multicultural and Indigenous Affairs v SZFDJ [2006] FCAFC 53 at [43], Secretary, Department of Sustainability and Environment (Vic) v Minister for Sustainability, Environment, Water, Population and Communities (Cth) (2013) 209 FCR 215 at [107] and Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180.

[40]See paragraph [19] of these reasons.

[41]See paragraph [23] of these reasons.

[42]Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375, followed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39.

[43](1984) 54 LGRA 403.

[44](1965) 113 CLR 365.

[45]At 407.

[46]MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590 at [65].

[47]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, following Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 and followed in Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [59]-[60].

[48]These regulations have since been repealed.

[49]Local Government Act 2009, s 175(1).

[50]Regulation 258(3).

[51]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388-399.

[52]Module2 Pty Ltd v Brisbane City Council 153 LGERA 120 and Hammercall Pty Ltd v Minister for Transport & Main Roads [2015] QSC 114 at [25] are examples.

[53]McLure v Mitchell (1974) 6 ALR 471, Efstathis v Greek Orthodox Community of St George [1989] 1 Qd R 146 at 149 and Myer Queenstown Garden Plaza Pty Ltd v Port Adelaide Corporation (1975) 33 LGRA 70 at 98.

Close

Editorial Notes

  • Published Case Name:

    Hamelech Basodeh Pty Ltd v Gold Coast City Council & Anor

  • Shortened Case Name:

    Hamelech Basodeh Pty Ltd v Gold Coast City Council

  • MNC:

    [2022] QSC 57

  • Court:

    QSC

  • Judge(s):

    Davis J

  • Date:

    12 Apr 2022

  • Selected for Reporting:

    Editor's Note

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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