Alpine Pty Ltd v Brisbane City Council

Case [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:

1.      The application is dismissed.

2.      I will hear the parties about costs.

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 Act1991 (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 Immigrationand 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
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506
Plaintiff M1/2021 v Minister for Home…

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Details
AGLC
Alpine Pty Ltd v Brisbane City Council [2023] QSC 233
Case
[2023] QSC 233
Decision Date

CaseChat Overview and Summary

Alpine Pty Ltd sought judicial review of a decision by the Brisbane City Council to approve a Vegetation Protection Order (VPO) over a tree located on the applicant's vacant land. The applicant argued that the Council's decision was an improper exercise of power under the City of Brisbane Act 2010 (Qld) and the relevant local law. Specifically, Alpine Pty Ltd contended that the Council failed to properly consider their submissions and that the decision to make the VPO involved an error of law.

The legal issues before the court included whether the Council was required to provide written reasons in response to Alpine Pty Ltd's submissions under the Local Law and whether the reasons provided by the Council were adequate. The court examined the statutory framework, particularly section 27B of the Acts Interpretation Act, to determine the necessity for written reasons. The court found that while written notice of the confirmation or revocation of a VPO was required, the Local Law did not mandate written reasons for the decision. Furthermore, the court held that the Council was not required to consider Alpine Pty Ltd's submissions as a matter of law, since section 14(1) of the Local Law explicitly states that the Council must consider properly made submissions, a requirement the court found to be mandatory.

The court dismissed the application, finding that the Council's decision to approve the VPO was not an improper exercise of power and that the Council was not required to provide written reasons for its decision. The court will hear the parties on the issue of costs.

Orders

Orders of the court

1. The application is dismissed.

2. I will hear the parties about costs.

Background

Background to the litigation

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 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(1) 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.(2) …” [Emphasis added]. 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.” 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. Section 9 of the Local Law provides for the notice of a vegetation protection order relevantly as follows:“9 Notice of vegetation protection order(1) As soon as practicable after Council makes a vegetation protection order it must—(a)notify each person who appears to it to be an affected person with respect to the order; and(b)publish notice of the vegetation protection order on Council’s website.(2) A notice referred to in subsection (1) must—(a)include a statement as to the effect of the vegetation protection order; and(b)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(c)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(d)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.(3) …”[Emphasis added] 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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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 – a)set out the findings on material questions of fact;b)refer to the evidence or other material on which those findings were based.”[Emphasis added] 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. 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]”. 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. 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:(a)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;(b)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(c)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] [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. Turning then to an analysis of the grounds of review.Ground one: Failure to take into account the applicant’s submissions 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.[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.

Ratio Decidendi

Legal Principle Established

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