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[2018] QSC 170
In this decision, Ryan J held that a decision by the Council to refuse a developer’s request to amend an environmental overlay map was in a practical sense a final “decision” for the purposes of s 4 of the Judicial Review Act 1991. But, the application for review was summarily dismissed because she found that, as per the requirement from Griffith University v Tang (2005) 221 CLR 99, the decision was not a decision under an enactment because the developer’s rights in relation to the land remained as they were prior to the refusal.
Ryan J
1 August 2018
The respondent owned land regulated by the Moreton Bay Regional Council Planning Scheme, which was administered by the appellant (“MBRC”). [8]. That scheme provided for certain overlay mapping, which showed, among other things, vegetation contained within the local area. [27].
MBRC’s website contained a webpage entitled “Request for mapping change”. That website provided information on a “new service” offered by MBRC by which a person could request a “review of overlay mapping … if it is believed the mapping is incorrect”. [26]. If, upon receiving a request for a mapping change, MBRC accepted that the map contained an error, it could amend the planning scheme by either of two different statutory processes. [28]–[31], [46].
In October 2017, the respondent wrote to the Chief Executive Officer of MBRC requesting an amendment to certain environmental area overlay mapping because the area no longer contained vegetation. [14]–[17]. MBRC refused the request by letter dated 22 December 2017. [18].
The respondent applied for a statutory order of review of MBRC’s refusal of its request for a mapping amendment. MBRC applied to set aside or permanently stay the respondent’s application, on the grounds that (i) MBRC’s refusal of the mapping amendment request was not a “decision” for the purposes of the Judicial Review Act 1991 (“JRA”) and (ii) if the refusal did constitute a decision, it was not a decision made “under an enactment”. [23].
MBRC submitted that the refusal was not a “decision” for the purposes of the JRA because it was an initial decision in a multi-step process which may, or may not, ultimately result in an amendment to the planning scheme. [111]. The fact that there were multiple ways in which MBRC could amend the planning scheme demonstrated that this was far from a final and operative decision. [111]. Ryan J considered that it is the nature and effect of a decision, rather than its timing or distance from the end of a process, that is relevant to the question of whether it is final or operative. [121]. Her Honour accepted the respondent’s submission that MBRC’s refusal was, in a practical sense, final. [124].
As to whether the decision was made “under an enactment”, MBRC submitted, by reference to Griffith University v Tang (2005) 221 CLR 99, that the decision must itself confer, alter or otherwise affect legal rights. MBRC contended that the refusal made no change to the rights or obligations of the parties, which remained as they were prior the respondent’s request. [129]. The respondent submitted that it would be a mistake to read Tang as limiting the concept of a reviewable decision to those decisions positively conferring, altering or affecting legal rights. [132]. The respondent submitted that in instances where applications such as licences or development applications are refused, it might often be the case that legal rights and obligations remain unchanged. However, it submitted, a negative decision should be reviewable if it prevents the conferment, alteration or affection of legal rights. [132]. Ryan J disagreed. Applying Tang, her Honour held that the decision was not under an enactment, because it had no effect on legal rights. The respondent’s rights in relation to the land remained as they were prior to the refusal and nothing prevented it from applying afresh for an amendment. [136]-[137].
In the result, the respondent’s application for a statutory order of review was summarily dismissed.
M Maynard