Emerald Developments (Aust) P/L v Minister for Environment, Local Government, Planning and Women

[2006] QSC 73

SUPREME COURT OF QUEENSLAND

CITATION:

Emerald Developments (AUST) P/L v Minister for Environment, Local Government, Planning and Women [2006] QSC 073

PARTIES:

EMERALD DEVELOPMENTS (AUST) PTY LTD (ACN 099 625 411)
(applicant)
v
MINISTER FOR ENVIRONMENT, LOCAL GOVERNMENT, PLANNING AND WOMEN
(respondent)

FILE NO/S:

SC No 2030 of 2006

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

11 April 2006

DELIVERED AT:

Brisbane

HEARING DATE:

7 April 2006

JUDGE:

de Jersey CJ

ORDER:

A declaration that the decision of the respondent on 8 October 2004 to refuse the application referred to in para 1 of the originating application filed 10 March 2006 was and is unlawful and of no effect1.    

A direction that the hearing of the claim for the relief set out in para 1 of the originating application be adjourned to a date to be fixed2.    

An order that the respondent pay the applicant’s costs of and incidental to the hearing on 7 April 2006, to be assessed3.    

CATCHWORDS:

ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – MATTERS FOR CONSIDERATION OF CONSENT AUTHORITY – GENERALLY - Minister calls in code assessable development application – refused on State interest ground – whether Integrated Planning Act 1997 (Qld) authorized Minister’s reference to such matters – relevance of abandonment of legislative attempt to broaden Minister’s purview

Integrated Planning Act 1997 (Qld), s 3.1.1, s 3.1.7, s 3.5.4, s 3.5.13, s 3.6.1, s 3.6.2, s 3.6.5, s 3.6.7, s 3.8.6, s 4.1.21, s 5.9.5
Integrated Planning and Other Legislation Amendment Act 2001 (Qld)
Integrated Planning and Other Legislation Amendment Act 2003 (Qld), s 111
Judicial Review Act 1991 (Qld)

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, cited
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, cited
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, cited

COUNSEL:

C L Hughes SC with M O Plunkett for the applicant
M D Hinson SC for the respondent

SOLICITORS:

Suthers Taylor Lawyers for the applicant
Crown Law for the respondent

1. de JERSEY CJ:  On 27 August 2002, the applicant applied to the Brisbane City Council, under the Integrated Planning Act 1997 (Qld), for the grant of a development permit in relation to land bounded by Queen Street, Ann Street and Clark Lane, Brisbane. The application proposed a material change of use (for “Centre Activities (Multi-Unit Dwelling, Shop, Restaurant”), and sought preliminary approval to carry out work on land adjoining a “Heritage Place”.

1. The project contemplates the construction of a 77 storey single high-rise residential tower, together with retail and other facilities, on 1529 square metres of inner-city land situated at the edge of the central business district.

1. The application required “code assessment” (s 3.5.13).  Sub-section (2) of that provision is as follows:

“(2)  The assessment manager must approve the application if the assessment manager is satisfied the application complies with all applicable codes whether or not conditions are required for the development to comply with the codes.”

1. Under 3.6.5, the Minister (who is the present respondent) may “call in” a development application if the development involves a “State interest”.  The term “State interest” is defined in Schedule 10 of the Act as meaning:

“(a)       an interest that, in the Minister’s opinion, affects an    economic or environmental interest of the State or a region;   or

(b)          an interest in ensuring there is an efficient, effective and                 accountable planning and development assessment system.”

1. By letter dated 20 July 2004, the Minister called in this application.  The Minister thereby became the “assessment manager” in lieu of Brisbane City Council (s 3.6.7(1)(a)). 

1. What were the other consequences?  Because Brisbane City Council had not by then made a decision on the application, the Minister became obliged to continue the integrated development assessment system (“IDAS”) (s3.1.1), and the Minister’s decision in due course would be “taken to be the original assessment manager’s decision” (s 3.6.7(1)(e)).  The original assessment manager must in that situation give the Minister all reasonable assistance as required, and all material in its possession about the application (s 3.6.7(2)). 

1. Another important consequence was that whereas there would have been a right of appeal to the Planning and Environment Court from a decision on such an application if made by Brisbane City Council, there would in this case be no avenue for appeal from the Minister’s decision (s 3.6.7(1)(e)).  Further, there is no capacity for the judicial review of a call in and subsequent refusal (s 5.9.5), and the Planning and Environment Court has, in that situation, no declaratory powers (s 4.1.21(1)(a)).

1. By letter dated 6 October 2004, the Minister refused the application, expressing the following reasons for the refusal:

“1.        The development would prejudice the Master Planning exercise commenced by the Brisbane City Council as the proposed development exposes the following deficiencies of the current City Plan which form much of the basis for the Master Plan and the CBD Local Plan review:
(a)         the minimum lot size and/or height for high rise    development;
(b)         the development of high rise buildings on the periphery of   the CBD; and
(c)         the development of the CBD in the context of heritage    buildings and precincts.

2.          Approval of this development before Brisbane City Council has had the opportunity to undertake the necessary planning for the City of Brisbane could result in an inappropriate building of significant height, bulk and character which would dominate and change forever the skyline of the greater Brisbane area and the very character of the capital city of the State of Queensland.”

1. The Minister repeated those reasons when responding on 1 December 2004 to a request under the Judicial Review Act 1991 (Qld) for a “Statement of Reasons”.

1. On 10 March 2006, the applicants filed in this court the originating application presently before me.  The claims for relief which were pursued at the hearing are these:

“2. A declaration that in assessing the development application once called-in, the respondent was bound by the provisions of s 3.5.13 of IPA.

3. A declaration that in refusing the development application the respondent failed to apply the provisions of s 3.5.13 of IPA.

4. A declaration that the decision made by the respondent on 8 October 2004 pursuant to s 3.6.7 of IPA to refuse the development application was null and void and of no effect because:-…
             (c)       the refusal was ultra vires;…

5.          A declaration that the respondent’s refusal of the    development application was unlawful.
  …

9.          The respondent pay the applicant’s costs of the application.”

1. It was conceded at the hearing that the relief claimed in paras six and seven of the originating application should not be granted.  It was accepted that any further hearing of the application, in respect of claims not presently pursued (para 1), should be adjourned.

1. It was also common ground that this court, having resolved the question of construction, may and should grant any appropriate declaratory relief.  The parties were at one in characterizing the issue before me as purely one of statutory construction.

1. Had Brisbane City Council remained as “assessment manager”, it would have been constrained by s 3.5.4(2), currently in these terms:

“(2)The assessment manager must assess the part of the application only against –

(a)applicable codes (other than concurrence agency                 codes the assessment manager does not apply); and

(b)subject to paragraph (a) – the common material; and

(c)if they are not identified in the planning scheme as   being appropriately reflected in the planning scheme       –

(i)State planning policies, or parts of State   planning policies; and

(ii)for the planning scheme of a local   government in the SEQ region – the SEQ   regional plan;…”

I was addressed on the basis Brisbane City Council would, in practical terms, have been confined to the applicable codes and that “common material” (see definition in Schedule 10).

1. Mr Hinson SC, who appeared for the respondent, drew attention to the form of the legislation when the Minister called in the application.  The relevant provision then said:

“(2)The assessment manager must assess the part of the application only against –

(a)applicable codes (other than concurrence agency      codes the assessment manager does not apply); and

(b)subject to paragraph (a) – the common material.”

1. The Council identified the “applicable codes” in its letter of 4 December 2002 by which it acknowledged receipt of the application.  The applicant’s position is that the application complied with the codes, and that, if the decision-maker, Brisbane City Council would have been obliged to approve it (s 3.5.13(2)).  The present issue is, in effect, whether the Minister could exercise a broader, less controlled, discretion.

1. The matter was argued on the common assumption that the reasons assigned by the Minister for her refusal of the application did not concern the applicable codes, or the “common material”, or indeed anything expressly covered by s 3.5.4(2) (whether in its current or previous form). Significantly, the reasons make no reference to applicable codes.

1. I was addressed by both sides on the basis those reasons concerned aspects of the “State interest”.  That is an accurate characterization.  To illustrate, the reasons expressed by the Minister assert the inadequacy of the current City Plan, in relevant respects, and question the appropriateness of the proposed development for “the capital city of the State of Queensland”.

1. Under s 3.6.7(1)(b), the Minister, having called in the application, was obliged to continue the IDAS process. The question presently arising is whether the Minister, in doing so, was authorized to have regard, in determining the application, to matters of State interest.

1. Mr Hinson identified s 3.5.4(3) as the source of the Minister’s authority to have regard to matters of State interest in making that determination. It provides as follows:

“(3)If the assessment manager is not a local government, the laws that are administered by, and the policies that are reasonably identifiable as policies applied by, the assessment manager and that are relevant to the application, are taken to be applicable codes in addition to the applicable codes mentioned in sub-section (2)(a).” (emphasis added)

1. It was accepted that the Integrated Planning Act was a law administered by the Minister, and relevant to the application.  It was therefore “taken to be” an applicable code, in addition to those mentioned in sub-section (2).  Mr Hinson relied on that Act as authorizing the Minister’s reference to matters of State interest.  (No reliance was placed on the reference to “policies” in (3).)

1. While Mr Hinson could not point to any particular provision in the Integrated Planning Act saying that matters of “State interest” are, or could be, relevant to the assessment of such an application, he essentially submitted that because the State interest may justify a Ministerial calling in, it must necessarily be relevant to the subsequent assessment, and there lies the crux of this application.  As Mr Hinson put it:

“The relevance of IPA to the application arises from the provision it makes for the application to be called in on State interest grounds.  The State interest grounds for calling in the application are relevant to the assessment of and decision on the application.  It is an unlikely intention to attribute to Parliament that an application can be called in because it involves a State interest, but then must be assessed and decided without reference to the very thing which grounds a Ministerial call in.”  (emphasis added)

1. While that submission is initially appealing, I say at once that it is very important to note the tightly defined regime set up by this legislation, which descends to very particular prescription of what is and is not relevant, and what may be or may not be done.  One would in such a case expect to find a reasonably direct expression of the parliament’s intent.

1. In response to the submission, Mr Hughes SC, for the applicant, pointed out that s 3.5.4(3) does not apply just to cases where the assessment manager is the Minister. The range of assessment managers, other than local government, may be seen from Schedule 8A to the Act (cf. s 3.1.7(1)(a)), and includes port authorities, administering authorities, chief executives, the Queensland Heritage Council and other entities. That being so, there would, he submitted, need be clear indication in the Integrated Planning Act of the possible relevance of the State interest before the Minister, as the substituted “assessment manager” in this case, could lawfully have regard to it in determining the application.  Otherwise, there would be arguable scope for loose and liberal recourse by such other substitute assessment managers to general considerations not within the contemplation of the primarily applicable codes.

1. Mr Hughes relied also, in urging a not unduly expansive construction of sub-section (3), upon the recognition that in this situation a consequence of the calling in is denial of rights of appeal and review which would otherwise apply.

1. Mr Hinson submitted that “[i]n assessing and deciding the application in place of the assessment manager, the Minister is entitled to have regard to, and to give decisive weight to, the State interest.  That is the very purpose for conferring Ministerial IDAS powers.”  Whether that submission is to be adopted depends on the construction of the Act.

1. Considerations of the State interest may justify calling in an application.  But I am not satisfied that the Minister ipso facto then becomes entitled to take account of that interest, let alone accord it decisive weight.

1. A calling in has serious consequences, especially the removal of the right of appeal.  A strongly arguable purpose of a calling in, where the State interest arises, is simply to ensure that the decision to be made will be made, and made with ultimate decisiveness, at Ministerial level. 

1. Had the legislature intended that the Minister, in that situation, may have regard to broader public interest considerations, it could easily have made that clear.  That it has not done so is significant, in the context of an otherwise tightly described statutory regime.

1. Mr Hinson referred to Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-40 where Mason J said:

“(b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion.  If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive.  If the relevant factors – and in this context I use this expression to refer to the factors which the decision-maker is bound to consider – are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act.”

He relied especially on the last sentence, which I have highlighted.

1. But through s 3.5.4, the legislature has been at pains to prescribe, in a limiting way, the only matters which may be taken into account – as relevant for this application, the codes (and the “common material”) with the codes embracing, for present purposes, the Integrated Planning Act itself.  The Minister is limited to assessing the application “only against” those codes (including the Act).  It is inescapable that the Minister must be confined, in that exercise, in terms of any reference to the Act, to matters within it bearing on the assessment of the application.

1. Nowhere does the Act say or imply that the Minister may, in that process, have regard to matters of broader public or State interest.

1. Mr Hinson referred, in a separate submission, to a Minister’s power to give a “direction” to an assessment manager where “the development involves a State interest” (s 3.6.1), which may be to refuse the application (s 3.6.2). That process is distinct from a Ministerial call in, where the Act obliges the Minister to “continue the IDAS process” (s 3.6.7(1)(b), subjecting the Minister, among other things, to the constraints of s 3.5.4. It is unnecessary to decide whether the Minister, giving a direction, could rely on matters of State interest to refuse a code – assessable application: the processes of Ministerial direction (Part 6 Div 1) and Ministerial call in (Part 6 Div 2) are distinct and distinguishable from each other.

1. Because there is nothing in the Integrated Planning Act to the effect that in determining such an application (being one falling for code assessment), the assessment manager – whether local government or the Minister or other entity – may have regard to matters of State interest, s 3.5.4(3) could not in this case have justified the Minister’s reliance on those matters when determining the application.

1. There is another consideration – though strictly subsidiary – which strongly reinforces this construction of the legislation in the events which have happened. 

1. The Integrated Planning and Other Legislation Amendment Act 2001 (Qld) amended the Integrated Planning Act by inserting a new s 3.8.6, dealing with the effect of a call in. Sub-section (6) provided:

“(6)In addition to the matters the original assessment manager would be required to consider in assessing the application, the Minister may also consider any other matter the Minister considers is relevant to a State interest for which the call in was made.”

1. The provision was never proclaimed, and was eventually repealed by s 111 of the Integrated Planning and Other Legislation Amendment Act 2003 (Qld). Mr Hughes submitted that “as a matter of fact and law the parliament has considered but decided not to grant a power to the Minister to consider additional matters, namely State interests, in the assessment process”.

1. This consideration powerfully corroborates my conclusion as to the existence of the parliamentary intention emerging upon the ordinary construction of the legislative provisions to which I have referred.

1. Mr Hinson submitted in that regard that the inclusion of a provision, such as that incipient sub-section (6), would simply have served to “make explicit what is implicit in the legislation anyway”.  For reasons previously expressed, I do not accept that submission.

1. It follows that the Minister determined the application by reference to statutorily irrelevant considerations.  The determination is consequently unlawful.  See Plaintiff S157/2002 v Commonwealthof Australia (2003) 211 CLR 476, 506; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 351. By relying on irrelevant considerations the Minister fell into “jurisdictional error” which invalidated the decision and rendered it unlawful.

1. Subject to the result of any appeal, the Minister will no doubt consider the application afresh, as offered via Crown Law’s letter to the solicitors for the applicant of 5 April 2006 (Ex 2), in the context of the interpretation of s 3.5.4 set out in the course of these reasons, and recognizing the constraints of s 3.5.13(2).

1. It suffices, for my disposition of the application, to grant the following relief:

1.          a declaration that the decision of the respondent on 8 October 2004 to refuse the application referred to in para 1 of the originating application filed 10 March 2006 was and is unlawful and of no effect;

2.          a direction that the hearing of the claim for the relief set out in para 1 of the originating application be adjourned to a date to be fixed;

3.          an order that the respondent pay the applicant’s costs of and incidental to the hearing on 7 April 2006, to be assessed.