Hamelech Basodeh Pty Ltd v Gold Coast City Council & Anor

In this fascinating case, the applicant sought judicial review of a decision by the Gold Coast City Council to apply for the compulsory resumption of the applicant’s land. Davis J found that the City Council had not provided some information it relied on to the applicant prior to making its decision, and that on one instance of it doing so, this constituted a material jurisdictional error.

Davis J

12 April 2022

On 15 September 2020, the first respondent Council applied to the Minister for Resources (the “Minister”) to resume the applicant’s land for the protection of koala habitat. [1]. The Council’s application to the Minister was brought as a “constructing authority” under the Acquisition of Land Act 1967 (the “Act”). [1], [3]. The applicant subsequently brought a judicial review application, challenging the Council’s decision to apply to the Minister for the resumption.

Davis J commenced consideration of the application by considering the scheme of the Act. Significantly, his Honour noted that, under s 7 of the Act (relating to compulsory acquisition of property), a constructing authority must give a notice of intention to resume to the relevant landowner and allow time for objections prior to applying to the Minister. [4]–[5]. Following a notice being given, an objector may be heard by the constructing authority or its delegate under ss 7(3)(e)(iii) and 8 of the Act. [4], [7]–[8]. After the objection hearing, if any, the constructing authority must under s 9(1) consider any objections before forming the “opinion that the land in question is required for the purposes for which it is proposed to be taken”, and then apply to the Minister if it has formed such an opinion. [10]–[11].

Turning then to the facts of the matter, on 31 October 2019, the Council served on the applicant a notice of intention to resume which complied with the form requirements under the Act. [14]. On 5 December 2019, the respondent provided its notice of objection to the Council. [19]. At a special meeting of the Council, a unanimous resolution was passed, appointing Mr Graham Potter as the Council’s delegate to conduct the objection hearing. [20]–[22]. However, this item of business was not included in the meeting’s agenda until the day before it was due to be held. [21].

In its objection and at the objection hearing, the applicant advanced several grounds of challenge, two of which are relevant here:

(1) that the Council would be in breach of the “local government principles” set out in s 4 of the Local Government Act 2009 (“LGA”) by not considering “viable” alternatives to the compulsory acquisition (“Objection 4”); [19]

(2) that the taking of the land would be inconsistent with the State Planning Policy and its requirements to protect a key resource area (“Objection 5”). [19].

In response to Objection 4, Mr Potter considered a number of alternative protection mechanisms which were not put to the applicant. [25]. In response to Objection 5, Mr Potter considered a report from 2014 from a Groundwork Plus, which was not expressly put to the applicant. [75]. A draft report from Mr Potter was provided to the applicant, in response to which it requested the opportunity to provide further submissions in response to the further points considered in respect of Objections 4. [27]. A materially identical final report was provided to the Council, which subsequently applied to the Minister to resume the land. [30]–[31].

The applicant submitted that it was not required to show that any jurisdictional error which it made out could have affected the result of the Council’s decision-making process. [45]. Relying on the majority of the High Court’s judgment in MZAPC v Minister for Immigration and Border Protection (2021) 390 ALR 590, Davis J found that the applicant was required to show that, but for the error, a different decision could have been made (i.e. that the error was “material”). [46]–[47]. Davis J also found that, based on the scheme of the Act, 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”, such that any breach of this obligation will result in a jurisdictional error. [53].

The applicant argued that Mr Potter breached the rules of procedural fairness by not giving it notice of alternatives to resumption which were considered in response to Objection 4. [56].  Davis J found that upon accepting that it should consider viable alternatives to resumption, the Council was obliged to give the applicant the opportunity to be heard in respect of them. [69]. By failing to do so, it failed to afford procedural fairness to the applicant. [69]. This failure was “material” because, having decided to consider possible alternatives and assuming the Council was open to persuasion, submissions favouring other alternatives than the one selected could have affected the result of the Council’s deliberations. [73]. It follows that the Council committed a jurisdictional error in respect of Objection 4. [74].

The applicant also submitted that the Council had failed to afford it procedural fairness by failing to give it the opportunity to respond to the Groundwork Plus report. In respect of this submission, Davis J considered that, while the Groundwork Plus report was considered by Mr Potter, “it does not necessarily follow that it was an operative consideration in drawing the conclusions he did.” [81]. In his Honour’s view, the reference to the Groundworks Plus report was merely done to observe that it gave opinions consistent with town planning decisions that were made. [83]. Even if the applicant had been able to respond to it, it still would have had to overcome the town planning decisions. [84]. Accordingly, the report could not have affected Mr Potter’s conclusions. [84]. Davis J considered that, even if this was a jurisdictional error, it would not have been material, so relief would not follow on this ground. [85].

Finally, Davis J considered whether the delegation to Mr Potter was validly made. The applicant submitted that it was not because an agenda containing delegation as an item of business was not provided to the councillors at least two days before the special meeting at which he was appointed, contrary to the Local Government Regulation 2012 (the “Regulation”). [86]. As the meeting was a special meeting, Davis J concluded that public advertising was not required. [92]–[93]. Although the meeting was validly called, Davis J accepted that as insufficient notice was provided in respect of the delegation to Mr Potter, the resolution appointing him was passed contrary to the Regulation. [97]. However, as it was passed unanimously that the notice provisions are designed to give councillors notice of the business to be transacted at a meeting, “there is no statutory intention that such a resolution would be invalidated”. [103] It follows that this ground of review failed. [104].

In the event, Davis J declared that the Council’s application to the Minister was void and of no effect. [109].

M Paterson