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In this recent matter, his Honour considered the merits of a cross-application under s 48 of the Judicial Review Act 1991 to dismiss an application for judicial review of a decision challenging two conditions imposed in relation to an approval for a material change of use. The aspect of the matter of particular interest was whether the conditions challenged were severable from the approval as a whole, and if so, what was the appropriate test for severability in the context of judicial review?
30 September 2019
The applicant operates a high impact crushing, screening and stockpiling business () in proximity to residential areas in Townsville. It was granted conditional approval by the respondent to conduct its activities. The conditions included that the permitted uses were allowed to be carried out for a duration of two years; and that vehicle movements were not to exceed 80 Heavy Vehicle movements per day (as a combination of ingress and egress vehicle movements per day). . The applicant challenged those conditions. .
The respondent sought to stay or dismiss the proceeding, arguing that the two challenged conditions were necessary to the approval as a whole since they were intended to lessen adverse impacts on roads, the environment and a neighbouring residential development and to allow the applicant time, if desired, to transition to a more appropriate location for the proposed use. . His Honour was required to assess whether the two challenged conditions were in fact integral to the approval as a whole, so that it would be inappropriate simply to set them aside (effectively rendering the approval unrestricted). , , .
In examining that issue, his Honour undertook an objective consideration of the decision, rather than the subjective reasons of the decision-maker. As part of the exercise, he had the benefit of the material which had originally been before the decision-maker, inclusive of a prior independent review (which had recommended that the application be denied), together with other relevant material addressing the various conditions which might best meet the objectives of the planning policy contained in the Development Scheme. . In his Honour’s view, both conditions were integral to the approval. Expressing the view that it would be “difficult to deny” that the two challenged conditions are integral to the approval as a whole, his Honour emphasised that the absence of both would result in “a substantially different approval, being a use unlimited in its duration and unlimited in the number of heavy vehicle movements along Racecourse Road”– not an outcome in line with what was approved. .
Severance in relation to town planning permissions
In terms of the question of whether the conditions were nonetheless severable from the approval as a whole, his Honour sanctioned the decision of the House of Lords in Kent County Council v Kingsway Investments (Kent) Ltd  AC 72 as “influential”. That case, whilst not prescribing a single formulation for severance, suggested that whether a condition is trivial, unimportant or incidental (as opposed to of importance to the permission as a whole) is of relevance. . Put differently, how significant is a condition, and would its deletion alter the substance of what remains?
In his Honour’s view, both conditions were fundamental, and would not be able to be removed without altering the substance of the approval. –.
Severance in the context of the Judicial Review Act 1991
His Honour’s reasons are instructive as regards the appropriate test for severability in the context of judicial review. Whilst acknowledging that Kent County Council has been widely applied in other town planning decisions, the fact remained that the issue at hand did not arise in the context of a statutory town planning appeal, but rather, judicial review. .
He observed that s 30(1) of the Act expressly enables a party to have part of a decision to approve an application which contains certain conditions deemed to be severable, quashed or set aside. That remedial response should only be exercised in a case where the remaining part of the decision “could stand alone if the part set aside were to be severed”. Otherwise, the undesirable result of invalidating part of a decision would be that “the remaining part of the decision must likewise fall” with the consequence that the entire decision be set aside.
His Honour clarified that the applicant:
“does not challenge the decision to grant approval with conditions on the basis that the inclusion of invalid conditions leads to the invalidation of the decision to grant approval with conditions. It does not challenge the decision to grant approval with conditions on the basis that the two conditions are beyond power, and seek to invoke a severance argument that the appropriate form of relief is for the invalid conditions to be severed. Goodsell seeks judicial review of the decision to impose the two conditions, not the decision to approve the application with conditions.” .
On that basis, the proceeding did not seek to engage s 30(1)(a) in a judicial review of the decision to approve with conditions by requesting an order that only part of the decision (the conditions) be negated. Instead, judicial review of the conditions was sought, together with an order that the decision to impose them be set aside. .
Given the above, and his Honour’s finding that the challenged conditions were integral to the approval as a whole, he determined that it would be inappropriate to simply set them aside, or sever them from the approval as a whole. . He allowed the cross-application to dismiss the proceeding. .
A de Jersey