Alpine Pty Ltd v Brisbane City Council
[2023] QSC 233
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- Notable Unreported Decision
- Alpine Pty Ltd v Brisbane City Council[2023] QSC 233
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Alpine Pty Ltd v Brisbane City Council[2023] QSC 233
Alpine Pty Ltd v Brisbane City Council[2023] QSC 233
SUPREME COURT OF QUEENSLAND
CITATION: | Alpine Pty Ltd v Brisbane City Council [2023] QSC 233 |
PARTIES: | ALPINE PTY LTD ACN 009 712 592 (applicant) v BRISBANE CITY COUNCIL (respondent) |
FILE NO/S: | BS 2449 of 2023 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court of Queensland |
DELIVERED ON: | 20 October 2023 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 6 October 2023 |
JUDGE: | Muir J |
ORDER: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where the applicant is the registered owner of land that is subject to a Vegetation Protection Order made by the respondent – where the applicant claims that the respondent’s decision to approve the Vegetation Protection Order was an improper exercise of power conferred on the respondent by a local law – where the applicant claims the decision by the respondent to make the Vegetation Protection Order involved an error of law – where the applicant claims the respondent failed to take into account the applicant’s submissions ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – GENERALLY – whether the respondent was required to give reasons in response to the applicant’s submissions under the Local Law – whether reasons given to the applicant by the respondent were inadequate – whether a statement of reasons given to the applicant by the respondent failed to set out an actual path of reasoning Acts Interpretation Act 1954 (Qld) City of Brisbane Act 2010 (Qld) City of Brisbane Regulation 2012 (Qld) Judicial Review Act 1991 (Qld) Local Government Act 1993 (Qld) Natural Assets Local Law 2003 Statutory Instruments Act 1992 (Qld) Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 4 ALR 500 Bat Advocacy NSW Inc v Minister for Environmental Protection, Heritage and the Arts (2011) 180 LGERA 99 Berridge v The Independent Assessor & Anor [2023] QSC 228 Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 59 FLR 132 Buck v Bavone (1976) 135 CLR 110 Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 325; [2017] FCAFC 107 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 DQM18 v Minister for Home Affairs (2020) 278 FCR 529 Fry v Mcgufficke [1998] FCA 1499 Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291; [1987] FCA 457; Lopez-Avila v K & S Freighters Pty Ltd [2015] FCA 962 Mentink v Minister for Home Affairs [2013] FCAFC 113 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration & Border Protection v Maioha (2018) 267 FCR 643; [2018] FCAFC 216 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Minister for Immigration, Local Government and Ethnic Affairs v Taveli (1990) 23 FCR 162 MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506 Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417 Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 327 ALR 8 Reece v Webber (2011) 192 FCR 254 Willis v State of Queensland [2016] QSC 80 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 |
COUNSEL: | S McLeod KC for the applicant M Trim for the respondent |
SOLICITORS: | Colin Biggers Paisley for the applicant City Legal – Brisbane City Council for the respondent |
Introduction
- [1]The applicant is the registered owner of land in a suburban street in the inner Brisbane suburb of Camp Hill. On 13 June 2022, the respondent placed a Vegetation Protection Order (VPO) on a Eucalyptus tree located on this land under s 8 of the Natural Assets Local Law 2003 (Local Law). On the same day, the applicant was given written notice of the VPO and of the right to make a written objection submission. The applicant exercised this right and on 15 July 2022, through its solicitors, provided submissions to the respondent that the VPO should be revoked. On 6 December 2022, the first respondent made a decision under s 14(2) of the Local Law confirming the VPO. On 30 January 2023, the respondent provided a statement of reasons for the decision under s 32 of the Judicial Review Act 1991 (Qld) (JRA) after having been requested to do so by the applicant on 22 December 2022.
- [2]The applicant applies under s 20(2)(e) and (f) of the JRA for a review of the decision of the respondent “made on 13 June 2022 and confirmed by decision dated 6 December 2022” on two grounds:[1]
- First: That the making of the respondent’s decision was an improper exercise of the power conferred by the Local Law in that the respondent failed to take into account the applicant’s submissions;
- Secondly: That the decision involved an error of law in that the statement of reasons failed “to set out the actual path of reasoning” by which the respondent reached its decision.
- [3]The application for review and aspects of the applicant’s submissions appear to suggest that the decision of 8 July and 6 December are both being reviewed. But I have determined this application on the basis that the 6 December decision is the only decision to be reviewed under the JRA for two reasons:
- First: No grounds for review of the 8 July decision are stated by the applicant and, in any event, the applicant is out of time for a review of that decision (even if it is reviewable under the JRA)[2]; and
- Secondly: It is obvious from the statutory regime as discussed under that heading below and on the facts (for example, the request for a statement of reasons by the applicant is of the decision to uphold the VPO on 6 December) that the decision for review is the one of 6 December.
- [4]The constraints on a court’s function in judicial review of administrative actions are well known to be confined to the legality of the decision as opposed to a general review of the decision or a substitution of the decision which the court thinks should have been made.[3]
- [5]In order to analyse the grounds for review of the 6 December decision it is helpful to understand the statutory framework within which this decision was made as well as the factual context.
Relevant facts and statutory framework
- [6]Section 29 of the City of Brisbane Act 2010 (Qld) empowers the respondent to make local laws. Section 8 of the Local Law provides for the respondent to make vegetation protection orders relevantly as follows:
“8 Vegetation protection order
- If, in Council's opinion, there are grounds for considering that one or more of the objects of this local law would be fostered by providing for the protection of vegetation of any nature existing on a particular area of freehold land in the city, then Council may make a vegetation protection order applying to that vegetation.
- …”
[Emphasis added].
- [7]The objects of the Local Law are set out in s 2. Relevantly in this case, in making the VPO, the respondent relied on object 2(1)(c) which provides for “facilitating the retention of the landscape character of the city.”
- [8]On 13 June 2022, the respondent placed the VPO on the tree located on the applicant’s vacant block of land which has an area of approximately 727m². The block is almost entirely grassed, apart from the tree which is centrally located near the front of the block.
- [9]Section 9 of the Local Law provides for the notice of a vegetation protection order relevantly as follows:
“9 Notice of vegetation protection order
- As soon as practicable after Council makes a vegetation protection order it must—
- notify each person who appears to it to be an affected person with respect to the order; and
- publish notice of the vegetation protection order on Council’s website.
- A notice referred to in subsection (1) must—
- include a statement as to the effect of the vegetation protection order; and
- include a statement as to the right of any person to make a written submission by way of objection to the making of the vegetation protection order; and
- state a period (which must be at least 14 days from when the notice is given) for the making of written submissions to Council about the vegetation protection order; and
- include a statement that Council may upon a consideration of each submission made and without further consultation, confirm or revoke the vegetation protection order pursuant to section 14.
- …”
[Emphasis added]
- [10]The respondent gave the relevant notice required under s 9 of the Local Law in a letter dated 13 June 2022. Whilst this notice referred to the relevant object of the Local Law being object 2(1)(c), the VPO attached incorrectly referred to object 2(1)(a) [protecting the biodiversity values of the city including, but not limited to, the habitat and ecological requirements of native flora and fauna] as being relevant. Nothing particularly turns on this error, although it did mean that through no fault of the applicant, an ecologist report was obtained and its submissions in response addressed this object when they didn’t need to.
- [11]Section 12 of the Local law provides for the timing of the submission and s 13 for the requirement that the submission “must be related to the objects of this local law” [s 13(2)].
- [12]On 15 July 2022, the applicant’s solicitors sent a detailed submission to the respondent as to why the VPO should be revoked “in whole”.[4] These submissions included two expert reports: one from an ecologist and one from a landscape architect. The ecologist report is not relevant for the reasons stated at paragraph 10 above. The respondent’s consideration of these submissions is discussed under the ‘Ground one’ heading below.
- [13]The requirement for the respondent to consider any submissions in response is set out in s 14 of the Local Law as follows:
“14Confirmation or revocation of vegetation protection order
- Council must consider submissions properly made in response to the notice under section 9.
- Upon consideration of those submissions, Council may—
(a) confirm the vegetation protection order with or without modifications resulting from matters referred to in a submission or submissions; or
(b) revoke the vegetation protection order in whole or in part.”
[Emphasis added]
- [14]Section 16 of the Local Law then provides for notice of this decision as follows:
“As soon as practicable after Council confirms or revokes a vegetation protection order, it must give notice of the confirmation or revocation to each person who appears to be an affected person with respect to the order”.
- [15]On 6 December 2022, the respondent wrote to the applicant’s solicitors in response to the issues “raised in your submission” and acknowledged that the applicant was “opposed to the VPO.”[5] Among other things, this letter gave the required s 16 notice of the respondent’s decision to confirm the VPO “[a]fter reviewing all relevant matters relating to this VPO.” The reasons for the decision were stated (under that heading) to be as follows:[6]
“The tree is highly visible from the street, numerous surrounding properties and is a prominent feature of the local landscape. As such, the tree contributes to the streetscape and, in conjunction with other mature trees in the area, contributes to the leafy green character of the area and reflects the sub-tropical landscape of the city.”
- [16]On 22 December 2002, the applicant’s solicitors requested a written statement of reasons under s 32(1) of the JRA in relation to the respondent’s decision to uphold the VPO.
- [17]This statement of reasons was provided by the respondent in a letter to the applicant on 30 January 2023. The relevant parts of those reasons are set out as follows:[7]
“…The factors considered when assessing whether the Eucalypt tree meets Object 2(1)(c) include the following:
- The Eucalypt tree is visually prominent and discernible due to its size, form and position in the landscape.
- The Eucalypt tree provides shading of and contributing to the attractiveness of the streetscape.
- The Eucalypt tree is an outstanding specimen of a species commonly associated or recognised as contributing to Brisbane’s subtropical character and amenity.
- The Eucalypt tree appears to be structurally sound, with good health, vigour and form and free of pests and diseases.
Significant Landscape Trees are generally large, well-established trees that add to an area’s unique landscape character. These trees help beautify Brisbane’s suburbs and streetscapes and provide cool, shady relief in summer and habitat for local fauna species. These trees are important in the urban environment and are valued by the community and by Council, so they are afforded special protection.
The reasons it was concluded the VPO was appropriate is that the tree is a tall, mature Eucalypt located on a vacant block on top of a rise.
The Eucalypt tree appears to be in good health, vigour and form and is growing typical of its species within the confines of the residential block. The tree maintains a full canopy with no leaf necrosis or stunting evident. There is no evidence of major or significant health defects and does not appear to be impacted by pest or disease. The tree has exceptional form with a well-balanced canopy with no tip necrosis and no visible signs of branch union failure. While some minor deadwood removal may be required, this is generally required as with some Eucalypt species where regular maintenance does not occur.
The tree is prominent in the landscape and visible from several public vantage points, including Indus Street at various locations, Pavo Street, Buena Vista Avenue and Boundary Road. This visibility was taken into consideration when evaluating the tree’s values or attributes against the Objects, in particular Object 2(1)(c) facilitating the retention of the landscape character of the city. The Eucalypt tree is located approximately 75m from a large, remnant area of native forest at Whites Hill Reserve. The Eucalypt tree contributes to the streetscape amenity of the leafy green character of the area, reflects the sub-tropical landscape of the city and contributes to the footpath shading along Indus Street.
Additional materials were received during the submission period The report provided by SLR Consulting identifies in Figure 14, Figure 15, Figure 16, Figure 17, Figure 18 and Figure 19 the predominance of the tree in the local landscape. It was concluded no evidence or information was provided in those materials that would lead to a change in the original decision. Please refer to the attached Assessment Images and SLR Consulting Report that supported the conclusion that the Eucalypt tree meets Object 2(1)(c).
The Eucalypt tree continues to meet the object of the Local Law under which the order was made. This and other species of Eucalypt trees are an established feature across many Brisbane suburbs and recognising the subject tree for its landscape character contribution is consistent with Council’s approach more broadly. The confirmation of the VPO will provide ongoing protection for this significant vegetation and the landscape values it exhibits…”
[Emphasis added]
- [18]Both grounds of review are underpinned to some extent by the applicant’s contention that the Local Law required the respondent to give written reasons which outlined an “actual path of reasoning” through material findings of fact and with reference to the evidence or other material, which lead to its decision to affirm the VPO.[8] It is therefore instructive to pause and consider the requirements under the Local Law for the respondent to give written reasons to the applicant (if any) for its decision to approve the VPO.
Was the respondent required to give written reasons under the Local Law ?
- [19]The requirement under s 14 of the Local Law is plainly for the respondent to do two things:
- First: consider the applicant’s submissions (which it is accepted were properly made in this case); and
- Secondly: upon doing so, to either confirm or revoke the VPO in whole or in part.
- [20]Under s 16 of the Local Law, the requirement is that the respondent must then (as soon as practicable) “give notice of the confirmation or revocation.”
- [21]The applicant submitted that this section, read in conjunction with s 27B of the Acts Interpretation Act 1954 (Qld) (Acts Interpretation Act), required the respondent to give written reasons for the confirmation or revocation of the VPO in the way outlined in paragraph 18 above. Senior Counsel for the applicant was unable to refer me to any authority on point to support this submission. That is not a criticism, nor (for the reasons set out in paragraph 26 below), is it surprising.
- [22]Section s 27B of the Acts Interpretation Act states as follows:
“If an Act requires a tribunal, authority, body or person making a decision to give written reasons for the decision (whether the expression ‘reasons’, ‘grounds’ or another expression is used), the instrument giving the reasons must also –
- set out the findings on material questions of fact;
- refer to the evidence or other material on which those findings were based.”
[Emphasis added]
- [23]The applicant submitted that the s 16 requirement for the applicant to give “notice of” should be construed to fall within the formulation of “another expression is used ” in s 27B of the Acts Interpretation Act.
- [24]The word “notice’ is not defined in the dictionary of the Local Law but s 3(2) of the Local Law relevantly provides as follows:
“A word used in this local law that is defined in the City of Brisbane Act 2010 or the City of Brisbane Regulation 2012 has the meaning given in that act or regulation, respectively, unless it is otherwise defined in the dictionary [of this Act]”.
- [25]Schedule 4 of the City of Brisbane Regulation 2012 defines ‘notice’ as “written notice”. It follows that I am satisfied that written notice of the confirmation or revocation of a vegetation protection order is required under s 16.
- [26]However, I reject the applicant’s submission that s 16 requires the respondent to give written reasons for its decision under s 14(2) for three reasons:
- First: It overlooks that on a plain and ordinary reading of s 16, the requirement is to give notice of the confirmation or revocation only;
- Secondly: It would require a strained reading of s 16 to imply that such notice was intended to include “notice of” the reasons for the confirmation of revocation under s 14; and
- Thirdly: Given my first and second findings, it follows that the specific detail required for written reasons of the decision as set out in s 27B (a) and (b) of the Acts Interpretation Act, do not apply in the present case, as s 14(2) of the Local Law is not a section “of an Act” that requires the respondent to give written reasons for the decision.[9]
- [27]Turning then to an analysis of the grounds of review.
Ground one: Failure to take into account the applicant’s submissions
- [28]The applicant’s first ground of review was initially underpinned by the contention that the submissions were required to be considered by implication.[10] But as the respondent correctly pointed out in its submission in response, such an implication is not required because s 14(1) of the Local Law expressly provides that the respondent must consider submissions properly made.[11] This I accept is a mandatory requirement.
- [29]The parties disagreed about what such a consideration entails.
- [30]On the one hand, the respondent submitted that “it will suffice, in context, if the decision-maker has considered the necessary material within the literal meaning of that word (and no more),”[12] but it was not apparent what the respondent meant by this.
- [31]On the other hand, the applicant submitted that the required consideration involved an engagement in “an active intellectual process, in which each relevant matter receives genuine consideration.”[13] I accept this submission as correct as a general proposition. But this expression itself lacks clarity.[14] And as the following observations of the High Court in Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417 reveal, expressions such as “an active intellectual process” must be understood in their proper context:[15]
“Labels like “active intellectual process” and “proper, genuine and realistic consideration” must be understood in their proper context. These formulas have the danger of creating “a kind of general warrant, invoking language of indefinite and subjective application, in which the procedural and substantive merits of any [decision-maker’s] decision can be scrutinised.” That is not the correct approach. As Mason J stated in Minister for Aboriginal Affairs v Peko-Wallsend, “[t]he limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind”. The court does not substitute its decision for that of an administrative decision-maker.” [emphasis added]
- [32]Ordinarily the requirement “to consider” requires more than the decision-maker simply acknowledging or noting the submissions have been made.[16] A duty to consider requires more than a blanket assertion that the decision-maker has done so;[17] and mere advertence to an aspect of the submission may not necessarily be sufficient to show that they were properly considered.[18] But whether there is compliance with a statutory requirement “to consider” ultimately depends on the nature, form and content of the submissions and an understanding of the statutory context in which they are to be considered and in which the decision is to be made.
- [33]The starting point is that the decision-maker must “read, identify, understand and evaluate” the submissions.[19] This requires the decision-maker to intellectually engage within the bounds of rationality and reasonableness by turning its mind to the facts, arguments or opinions in the submissions and appreciating who is making them.[20]
- [34]It is incumbent on the court to make its own “qualitative assessment of the process undertaken by the decision-maker.”[21] And the fact that a decision-maker says they have had regard to or considered a representation does not by itself establish that they have, as a matter of substance, done that. But a court will not ignore such a statement.[22]
- [35]The consideration to be undertaken by the respondent in this case is of the applicant’s response to the s 9 notice of the VPO having been made [under s 8 of the Local Law]. Section 8 is a relatively undemanding and broad provision: it provides that in order to make a VPO the respondent must be satisfied that there are grounds that an object “would be” fostered not that the object is in fact fostered; and it implicitly recognises that there may be more than one opinion about this.
- [36]The requirement of the respondent to consider the submissions in response must be seen in this context and then in the context of s 14(2) of the Local Law which affords a broad discretion in the respondent (following its consideration of the submissions) in that it “may” either confirm the VPO with or without conditions or revoke the VPO in whole or in part. This provision must be read in conjunction with s 9(2)(d) which dictates that the s 9 notice must include a statement that the respondent may, upon consideration of the submission, “and without further consultation” confirm or revoke the VPO under s 14. It follows that the weight to be afforded the facts arguments or opinions in the submissions is clearly a matter for the respondent.[23]
- [37]The following observations of Gibbs J in Buck v Bavone (1976) 135 CLR 110 are relevant to the function of the court on a judicial review in a case such as the present where the decision is at the discretion of the decision-maker:[24]
“In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached.”
[Emphasis added]
- [38]The necessary consideration under s 14 must also be seen in the context of the following four matters which follow from a plain reading of the section and the Local Law as a whole:
- First: There is no formula to be applied or express matters that must be addressed or any requirement to respond to the submissions;
- Secondly: There is no requirement for reasons for any decision that follows under s 14;
- Thirdly: There is no express requirement for any kind of fact finding exercise after a consideration of the submissions; and
- Fourthly: A VPO is not necessarily the end of the matter. The Local Law recognises that permits may be applied for (for example if maintenance is necessary) and as the Local Law is not a land use control, it will not stop re-development of the land subject to the development assessment process.[25]
- [39]The applicant’s submissions in response to the s 9 notice were relevantly underpinned by a written advice obtained from Dean Butcher, a landscape architect from SLR. Mr Butcher’s report focussed on object 1(c) of the Local Law; that is, whether the retention of the landscape character of the city will be facilitated by the making of the VPO. In concluding that the protection of the tree does not contribute to the objects of 2(1)(c), Mr Butcher assessed the contribution the tree makes to the landscape character of the city as follows:[26]
“The visibility of the subject tree as a single specimen in an elevated position within the context of the local residential street (Indus Street) varies depending on the specific location of the viewpoint. Whilst the subject tree is a visible element within the immediate surrounds of the subject site its level of visibility and prominence diminishes markedly when viewed from along Indus Street approximately 50m to the north and south of the subject site. This is due mainly to the presence of the visual obstructions between the view point and the subject tree.
It was generally noted that the tree was visible from adjourning streets such as Pavo Street, Ara Street, Thomas Street and Citrine Street.”
- [40]The report also noted that the tree “provides a negligible contribution to the character of the broader setting” and, in terms of a city-wide setting, is “imperceptible” and provided “no visible contribution to the character of the city-wide setting.”[27]
- [41]Unchallenged evidence from Caitlin Elizabeth Fitzgerald, the decision-maker within the respondent, about her consideration of the applicant’s submission was admitted before me.[28] Relevantly, Ms Fitzgerald’s evidence, which I accept, is that she:
- read and considered the submissions in their entirety;
- gave proper genuine and realistic consideration to the submissions;
- appreciated the opinions of Mr Butcher as a landscape architect;
- did not agree with the manner in which Mr Butcher characterised the visibility and prominence of the tree and its lack of contribution to the landscape character of the area; and
- considered that, contrary to the submissions, the tree was visually prominent and an outstanding specimen of a tree associate or recognised as contributing to Brisbane’s subtropical character and amenity.[29]
- [42]Before this court, the applicant submitted (acknowledging the overlap of the two grounds of review) that the statement of reasons do not: suggest “any kind of identification, understanding or evaluation of the clearly articulated arguments in the submission opposing the VPO”, or engage with the applicant’s submissions “at all.”[30] The adequacy of reasons issue is dealt with under the Ground two heading below. But otherwise I am not satisfied that the respondent failed to consider the applicant’s submissions for the following five reasons:
- First: I am satisfied that Ms Fitzgerald’s unchallenged and uncontradicted evidence of the process she undertook and the consideration she gave the submissions shows an engagement with the submission and ought to be given considerable weight in this case, not only because of her role and experience, but also because the applicant’s submissions were succinct and certainly not cumbersome, and were the only submissions received in response to the s 9 notice.[31] It is therefore reasonable to assume (and accept) as I do, that Ms Fitzgerald considered the submissions as she was required to and as she said she did.
- Secondly: The consideration required to be undertaken by the first respondent must be understood in the context of the statutory framework outlined in paragraphs 35 and 36 above;
- Thirdly: There is nothing irrational, unreasonable or illogical of the decision to confirm the VPO;
- Fourthly: The statutory requirement was for the respondent to consider the submissions in response to the s 9 notice, and having done that it was in the respondent’s discretion to confirm or revoke the VPO. There was no requirement, as the applicant contended, for the respondent to explain how and why she dealt with and disposed of the applicant’s submissions as part of this process; and
- Fifthly: The matters the applicant pointed to as showing a lack of engagement or understanding and therefore a failure to consider included “it was concluded no evidence or information was provided in those materials that would lead to a change in the original decision;” and further, “[the] SLR Consulting Report…supported the conclusion that the Eucalypt tree meets Object 2(1)(c).”[32] These matters suggest that the respondent wrongly interpretated or rejected or failed to appreciate Mr Butcher’s observations; and/ or that a different opinion or exercise of discretion ought to have been made by the respondent based on Mr Butchers views. But these are matters that go to the merits of the decision and are therefore not matters for judicial review.
- [43]I am therefore not satisfied that the making of the decision was an improper exercise of the power conferred by the Local Law.
- [44]It is well established that the materiality threshold in an application for judicial review is met where there is a realistic possibility that the decision in fact could have been different.[33] Regardless of my findings in the preceding paragraph, I am otherwise not satisfied that there is any reasonable basis upon which this court can infer that on the regular administration of the Local Law there would be any realistic possibility that the respondent’s decision could have been different, taking into account the applicant’s submissions.[34]
Ground two: The statement of reasons failed to set out the actual path of reasoning
- [45]
- [46]The applicant’s ground is confined to a failure to set out a path or reasoning, but I have considered this ground more broadly as one of “inadequacy of reasons.” The following principles emerge from the authorities as instructive on this issue:[37]
- Courts should generally look at the reasons fairly and as a whole – and discourage a merits review under the guise of an analysis of the reasons;[38]
- Courts encourage the expression of reasons in ‘clear and unambiguous language, not in vague generalities of the formal language of legislation’.[39] However, a “loose” or “unhappy” way of phrasing a thought will not lead the court to find an error of law;[40]
- Reasons will not be inadequate because there was evidence, other material or a different path of reasoning by which a different conclusion could have been reached, or the merits of the case re-argued;[41]
- Courts, aware of the pressures associated with administrative responsibilities in high-volume and urgent decision making,[42] exercise restraint and discourage examination of reasons minutely and freely with an eye keenly attuned to the perception of error.[43] Courts require substantial compliance, not perfection;[44] and
- The reasons of a decision maker are meant to inform and are not to be scrutinised by overzealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.[45]
- [47]The applicant pointed to the following three inadequacies in the statement of reasons:
- First: They failed to reveal the actual path of reasoning leading to the conclusion that there was nothing in the SLR report that would lead to a change in the original decision to make the VPO;
- Secondly: They failed to reveal the actual path of reasoning leading to the conclusion that the assessment images and parts of the SLR report attached to the statement of reasons supported the conclusion that the tree met object 2(1) (c); and
- Thirdly: There was no attempt to reconcile any of the conclusions expressed in the SLR report. These conclusions were helpfully summarised by the applicant as follows:[46]
“The SLR report concluded that the tree’s visibility and prominence diminished markedly when viewed from along Indus Street, namely due to the presence of visual obstructions between the viewpoint and the tree.[47] Within the broader setting, the report found that the tree’s visibility ranged from very low to negligible[48] and with regards to the city-wide setting, the conclusions noted the tree was imperceptible and provided no visible contribution to the character of the city-wide setting.[49] The report concluded by stating that the tree was “not a Significant Landscape Tree as it is not highly visible, prominent, nor unique within its visual settings…”
- [48]The path of reasoning, and fact finding standard of reasons demanded by the applicant in this case was underpinned to a large extent by the premise that the applicant was required to give written reasons. A premise I have rejected as discussed under that heading above. It follows that the reasons were not required to deal with, or “reconcile”, every point raised by the applicant’s material. There was no express requirement to do so, or any implied requirement in the context in which the decision was made. But regardless, I otherwise reject the applicant’s submissions that the reasons are inadequate for the following three reasons:
- First: As can be seen from the statement of reasons set out in paragraph 17 above and the summary of Mr Butcher’s opinion at paragraph 47 (c) above, both parties focused on the tree’s contribution to facilitating the retention of the landscape character of the city under object 2(1)(c). But in different ways. The applicant’s focus was on the tree’s contribution to and visibility in the local vicinity as being valuable. Mr Butcher did not necessarily agree with this – as a matter of opinion. His focus was on the limited visibility or minimal contribution of the tree in the broader context of the city. It is difficult to see how these two views which obviously placed weight on different factors could ever be reconciled. Rather never the twain shall meet.
- Secondly: It is not correct to say that there was no path of reasoning as to why certain photos and parts of the SLR report supported the VPO being approved. To the contrary, the attachments speak for themselves as being consistent with the expressed focus and weight given by the applicant to the value of the tree within the local vicinity. A factor obviously referred to by Mr Butcher but given less weight by him.
- Thirdly: The statement of reasons must also be read with the respondent’s letter of 6 December 2022 which reveals a different path of reasoning than that agitated by the applicant and succinctly explains why the VPO was affirmed by the respondent as follows:[50]
“When assessing trees for protection, part of the assessment process is to check for visibility from public vantage points. This tree can be seen from up and down the street and from long distances along surrounding footpaths and roadways. Hence it was determined that it meets the criteria required under the landscape object (object c). In respect to value to the city, it is in the protection of these older more established trees that contribute to the green space and liveability of the city. Retaining and protecting these significant trees across all suburbs of Brisbane plays an important part in providing sustainability for generations to come. Growing and protecting our urban forest is a key part of Council’s vision for the future.”
- [49]I am therefore not satisfied that the decision involved an error of law.
Other matters
- [50]The relief sought by the applicant “if successful” was that both decisions would “simply be set aside” with it being a matter for the respondent to determine “in due course” whether it wants to “proceed down the path to make a further VPO.”[51] I do not accept that the setting aside of the 13 June decision follows from a successful review of the 6 December decision. But nothing turns on this given my finding that the 6 December decision was not an improper exercise of the power conferred by the Local Law or infected by error.
Orders
- [51]The application is dismissed. I will hear the parties about costs.
Footnotes
[1]Amended application for a statutory order of review at 1(g) and (h) and 2(a).
[2]This issue was not argued before me and it is unnecessary for me to determine of this application.
[3]Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 327 ALR 8 at [23].
[4]Letter of 15 July 2022 page 63 of exhibit NEC to affidavit of Nadia Elizabeth Czachor.
[5]Affidavit of Czachor: exhibit NEC-05 at page 108.
[6]Ibid at page 110.
[7]Affidavit of Czachor: exhibit NEC-08 at pages 116–117.
[8]Applicant’s outline of submissions at para 16; with reference to Willis v State of Queensland [2016] QSC 80 at [11]; and Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 at [55].
[9]Cf. Section 28A (4)(iii) of the Local Law which provides that on a further review of a decision relating to a permit under Part 3 of the Local Law, the Council must, among other things, “give written reasons for the further review decision, setting out its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.” It is instructive that the stipulation is in nearly identical terms to that in s 27B (a) and (b) of the Acts Interpretation Act.
[10]Applicant’s outline of submissions at paragraph 10.
[11]Respondent’s outline of argument at paragraph 19. The applicant’s reply submission at paragraph 7 appears to accept this.
[12]Respondent’s outline of argument at paragraph 21.
[13]Applicant’s outline of submissions at paragraph 10: with reference to Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291; [1987] FCA 457; Bat Advocacy NSW Inc v Minister for Environmental Protection, Heritage and the Arts (2011) 180 LGERA 99 at [44] and Mentink v Minister for Home Affairs [2013] FCAFC 113 at [44].
[14]See my recent discussion of the authorities in Berridge v The Independent Assessor & Anor [2023] QSC 228 at [39]–[42].
[15]Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417 at [26].
[16]Minister for Immigration & Border Protection v Maioha (2018) 267 FCR 643; [2018] FCAFC 216 at [45] per Rares and Robertson JJ.
[17]DQM18 v Minister for Home Affairs (2020) 278 FCR 529 at [27]–[28].
[18]Reece v Webber (2011) 192 FCR 254 at [68]–[70].
[19]Plaintiff M1/2021 at [24].
[20]Plaintiff M1/2021at [25]. Relevantly in the present case the submission attached an opinion of a landscape architect.
[21]Berridge at [41].
[22]Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 325; [2017] FCAFC 107 at [48] per Griffiths, White and Bromwich JJ.
[23]On this point, see the observations of the High Court in Plaintiff M1/2021 at [24].
[24]Buck v Bavone (1976) 135 CLR 110 at 118–119; See also Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [130]–[137] per Gummow J.
[25]See the information sheet attached to the VOP (at page 60) of exhibit NEC-03 to the affidavit of Nadia Elizabeth Czachor sworn 27 February 2023
[26]The report including Mr Butcher’s CV is at pages 88 to 107 of NEC-04 to the affidavit of Nadia Elizabeth Czachor sworn 27 February 2023 – with the relevant parts extracted in the accompanying letter from the solicitors for the applicant dated 15 July 2022 at pages 63 to 66.
[27]Sections 6.2 and 6.3 of the report.
[28]Ms Fitzgerald did not make the decision to put the VPO in place on 13 June – that decision was made by Pat Bourke her supervisor at the time.
[29]Affidavit of Caitlin Elizabeth Fitzgerald affirmed on 6 June 2023 at paragraphs 25 to 36.
[30]Paragraphs 12 and 13 of the applicant’s outline of submissions.
[31]Minister for Immigration and Border Protection v Maioha (2018) 267 FCR 643 at 654 [45].
[32]Statement of Reasons at page 117 of exhibit NEC-08 to Czachor affidavit.
[33]MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
[34]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40.
[35]See the discussion at paragraphs 21 to 26 of these reasons under the heading “Was the applicant required to give written reasons under the Local Law?”
[36]Fry v Mcgufficke [1998] FCA 1499 at page 6.
[37]As elicited from paragraph 39 of the respondent’s outline of argument and paragraph 18 of the Applicant’s outline of argument.
[38]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291–293.
[39]Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 4 ALR 500 at 507.
[40]Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287.
[41]Lopez-Avila v K & S Freighters Pty Ltd [2015] FCA 962 at [22].
[42]Minister for Immigration, Local Government and Ethnic Affairs v Taveli (1990) 23 FCR 162 at 179.
[43]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
[44]Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 59 FLR 132 at 157.
[45]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272–273.
[46]Paragraph 22 of the applicant’s submissions with reference to affidavit of Czachor; exhibit NEC04 p 102.
[47]Affidavit of Czachor; exhibit NEC-04 p 96.
[48]Affidavit of Czachor; exhibit NEC-04 p 97.
[49]Affidavit of Czachor; exhibit NEC-04 p 102.
[50]Affidavit of Czachor; exhibit NEC-05 p 108. See also extract at paragraph 15 of these reasons.
[51]As articulated by senior counsel for the applicant in his oral submissions at T1-10, lines 1–5.