Bushcliff Pty Ltd v Redland Shire Council

Bushcliff Pty Ltd has sought judicial review of a decision by the Redland Shire Council ("the Council") to amend its draft Strategic Plan to change the designation of certain Council land from "marine oriented development" to "open space." Bushcliff purchased land in Wellington Point from Lensworth Properties Pty Ltd in February 1994. Glenkoo Holdings Pty Ltd was the registered proprietor of the land. The land was rezoned into the Comprehensive Development and Residential A zone to enable a canal residential subdivision to be developed in 1992 ("the development land"). Glenkoo entered into a Development Agreement with the Council to develop the land. The Council agreed to transfer to Glenkoo certain land adjoining part of the Glenkoo land and zoned Rural Non-Urban and Unzoned to be incorporated in the residential allotment canal subdivision and be rezoned into the development zone. Glenkoo was to carry out development works valued at $1.4 million. The State Department of the Environment gave approval for canals in the development which approval has been extended from time to time, is current and has been extended to Bushcliff. At the time when Glenkoo's mortgagee sold the land to Bushcliff the Council land had not been transferred to Glenkoo. Bushcliff engaged in extensive discussions with the Council and other authorities in respect of the development conditions and necessary approvals to proceed with the development. On 6 August 1996 a draft Strategic Plan was presented to the Environment Planning and Development Committee of the Council. The Committee recommended that the draft Strategic Plan be adopted by the Council for the purpose of statutory public exhibition. On 20 August 1996 the Council considered the Wellington Harbour Canal Estate. The Council reaffirmed its decision of 22 November 1995 to retain the Council land and resolved that it no longer favoured the establishment of a residential canal estate in the area using Council owned land. Bushcliff has two grounds for review. The first, that the Council failed to accord it natural justice in that it did not "properly advise" Bushcliff of its intention to change the designation of the land from "marine oriented development" to "open space" and afford Bushcliff an opportunity to be heard in relation to the making of the decision. Bushcliff further complains that the decision to place the draft Strategic Plan on public display showing the changed designation was an improper exercise of its power in that it failed adequately to consider the dispute and negotiations existing between Bushcliff and the Council, the validity of the Deed, and the Council's obligations with respect to the land. Bushcliff contends that the Council exercised the power of redesignating the land for a purpose other than a proper purpose. In my view those interests would attract the principles of natural justice. The statutory scheme enables submissions to be made by members of the public including Bushcliff and to have those submissions considered before the proposal is placed before the Governor-in- Council to amend the planning scheme. Bushcliff submits that that is insufficient given the damage which it asserts may be done to it if the preferred designation of the Council for the Council land goes to public display. If that is accepted and there was an obligation upon the Council to hear Bushcliff then Bushcliff faces some difficulties. It has already conferred with and made submissions to the Council's officers in respect of its entitlement to the Council land. The Council meeting, as the minutes reveal, had a detailed presentation of Bushcliff's arguments in favour of the Deed including a precis of counsel's opinion on the legal issues. I am not persuaded that the ground based on natural justice has any substance. Bushcliff has submitted that by redesignating the Council land the Council has in effect pre-empted the outcome of the dispute over the Deed and has thus utilised its planning powers for an improper purpose. The redesignation of the land was based on proper planning principles and the Council had a public duty to carry out those planning principles. There is no direct evidence of an improper purpose on the part of the Council in redesignating the land. The Council officer's recommendation to the Council that from a planning perspective additional material had not been presented which could give rise to a change of recommendation to that which led to the original planning approval might be regarded as evidence from which the inference of ulterior motive might be drawn. The material as it presently stands does not persuade me that it is likely to be resolved in favour of Bushcliff but I am of the view that there is a serious question to be tried about this matter. The orders made were: 1. Refuse the application for injunction. 2. Adjourn the further hearing of the application for judicial review to a date to be fixed. 3. Costs were reserved.