Hannay v Brisbane City Council

[1997] QCA 151

IN THE COURT OF APPEAL	[1997] QCA 151
SUPREME COURT OF QUEENSLAND

Appeal No. 9463 of 1996

Brisbane

[Hannay & Anor v. Brisbane City Council & Ors]

BETWEEN:

THOMAS HANNAY and ELIZABETH HANNAY

(First Applicants) First Appellants

AND:

THE CARINDALE LAND COMPANY PTY LTD

(Second Applicant) Second Appellant

AND:

BRISBANE CITY COUNCIL

(First Respondent) First Respondent

AND:

DIRECTOR-GENERAL DEPARTMENT OF LOCAL

GOVERNMENT AND PLANNING

(Second Respondent) Second Respondent

AND:

THE MINISTER FOR LOCAL GOVERNMENT

AND PLANNING

(Third Respondent) Third Respondent

Fitzgerald P
McPherson JA

de Jersey J

Judgment delivered 3 June 1997

Separate reasons for judgment of each member of the Court; each concurring as to the orders made.

APPEAL DISMISSED. APPELLANTS TO PAY THE FIRST AND SECOND RESPONDENTS' COSTS TO BE TAXED. NO ORDER AS TO COSTS AS BETWEEN APPELLANTS AND THIRD RESPONDENT.

requirement - natural justice -Local Government (Planning and
Environment) Act.

Counsel:	Mr S.J. Keim for the appellants Mr M.D. Hinson for the first respondent
Solicitors:	Phillips Fox for the appellants City Solicitor, Brisbane City Council, for the first respondent Crown solicitor for the second and third respondents

Hearing Date: 19 May 1997

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 9463 of 1996

Brisbane

Before Fitzgerald P.
McPherson J.A.
de Jersey J.

[Hannay & anor. v. Brisbane City Council & ors.]

BETWEEN:

THOMAS HANNAY and ELIZABETH HANNAY

(First Applicants) First Appellants

AND:

THE CARINDALE LAND COMPANY PTY LTD

(Second Applicants) Second Appellants

AND:

BRISBANE CITY COUNCIL

(First Respondent) First Respondent

AND:

DIRECTOR-GENERAL DEPARTMENT OF LOCAL

GOVERNMENT AND PLANNING

(Second Respondent) Second Respondent

AND:

THE MINISTER FOR LOCAL GOVERNMENT

AND PLANNING

(Third Respondent) Third Respondent

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 3 June 1997

The circumstances giving rise to this appeal are set out in the reasons for judgment of de Jersey J.

What natural justice, or procedural fairness, requires in a process of administrative decision-making

depends upon the circumstances of the case, and it might well be that the statutory procedure

prescribed by the Local Government (Planning & Environment) Act 1990 is inadequate for persons

such as the appellants in circumstances such as the present. However, assuming that to be so, the

appellants are disentitled to the relief which they seek if the Act discloses a sufficiently clear intention

that the procedure prescribed is intended to be exhaustive, and that there is no duty, or perhaps

power, to modify or supplement that procedure. The questions of what natural justice requires, what

the legislation provides for, and whether the legislative procedure accords natural justice are irrelevant

if it is concluded that a statute manifests a sufficiently clear intention that no more than the statutory

procedure is required, or perhaps permitted.

For the reasons given by de Jersey J., I am of opinion that the Act presently under consideration does

plainly manifest such an intention.[1]

[1]             cf. Makucha v. Albert Shire Council [1993] 1 Qd.R. 493, 497; Makucha v. Albert Shire Council [1996] 1 Qd.R. 53, 61.

Accordingly, I agree with the orders which his Honour proposes.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 9463 of 1996

Brisbane

Before Fitzgerald P.
McPherson J.A.
de Jersey J.

[Hannay & Anor. v. Brisbane City Council & Ors.]

BETWEEN:

THOMAS HANNAY and ELIZABETH HANNAY

(First Applicants) First Appellants

AND:

THE CARINDALE LAND COMPANY PTY. LTD.

(Second Applicant) Second Appellant

AND:

BRISBANE CITY COUNCIL

(First Respondent) First Respondent

AND:

DIRECTOR-GENERAL, DEPARTMENT OF LOCAL GOVERNMENT AND PLANNING

(Second Respondent) Second Respondent

AND:

THE MINISTER FOR LOCAL GOVERNMENT
AND PLANNING

(Third Respondent) Third Respondent

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 3 June 1997

For the reasons given by de Jersey J., I agree that this appeal should be dismissed with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 9463 of 1996

Brisbane

Before Fitzgerald P

McPherson JA

de Jersey J

[Hannay & Anor v. Brisbane City Council & Ors]

BETWEEN:

THOMAS HANNAY and ELIZABETH HANNAY

(First Applicants) First Appellants

AND:

THE CARINDALE LAND COMPANY PTY LTD

(Second Applicant) Second Appellant

AND:

BRISBANE CITY COUNCIL

(First Respondent) First Respondent

AND:

DIRECTOR-GENERAL DEPARTMENT OF LOCAL

GOVERNMENT AND PLANNING

(Second Respondent) Second Respondent

AND:

THE MINISTER FOR LOCAL GOVERNMENT

AND PLANNING

(Third Respondent) Third Respondent

REASONS FOR JUDGMENT - de JERSEY J

Judgment delivered 3 June 1997

The appellants sought a statutory order of review in relation to a decision by the respondent

Council to make application to the second respondent, the Director-General of the Department of

Local Government and Planning, to amend The City of Brisbane Town Plan. The amendment would

involve re-routing a proposed sub-arterial road through land east of Scrub Road within the Carina Carindale Local Area. Each of the appellants had an interest in opposing the proposed amendment.

The first appellants own land within that local area which would be affected by the road. The second

appellant owns adjoining land, and has had longstanding plans to acquire the first appellants' land and

develop it for residential purposes which would be affected by the presence of such a road. The first

respondent, Brisbane City Council, successfully applied for an order dismissing the appellants'

application. The learned primary Judge dismissed the appellants' application because it disclosed no

reasonable basis. The appellants now appeal against that dismissal.

The Council acted under ss.2.18(2)(b) and 2.19(3) of the Local Government (Planning

and Environment) Act. Section 2.18(4) prescribes a requirement that the local authority publish an

advertisement of the proposal in a newspaper. The terms of the subsection follow:

"(4) Where the Minister or a local government (in this section and sections 2.19 and 2.20 called the ‘proponent’) proposes to amend a planning scheme, the proponent is, by advertisement published at least once in a newspaper, to give public notice of the proposal in the manner and form prescribed."

The "manner and form" of the advertisement are defined by regulation.

The Council satisfied that obligation. The appellants did not however see the advertisement,

and submitted before the learned Judge, and on appeal, that they had not been treated fairly, in that

the Council should have notified the proposal to potentially affected landowners - including themselves

- by letter, or alternatively, have convened public meetings which would more likely have brought the

proposal to their attention.

The learned Judge rejected the appellants' contention. He held that ss.2.18 and 2.19 form part

of a code which covers the field of requirements relevant to this situation; and that since the Council

had complied with those requirements, the appellants had no basis for complaint. He put it as follows:

"The provisions of ss.2.18 and 2.19 are part of a code regulating inter alia decision- making of the kind the subject of the application. That that is so is made clear by s.1.3 which sets out the objectives of the Act. Paragraph (a) of that section makes one of those objectives ‘to provide a code by which a local government or the Minister may undertake the planning of an area to facilitate orderly development and the protection of the environment’. Sections 2.18 and 2.19 are detailed provisions covering the field and exhaustively and exclusively defining the content of any duty to observe the rules of natural justice or to act fairly in relation to a proposal to amend a planning scheme: cf. Attorney-General for Victoria v. City of Knox (1978) 42 L.G.R.A. 402, at p.423."

The Judge accordingly dismissed the application for a statutory order of review.

Section 1.3 is in these terms:

1.3 The objectives of the Act are -

(a)       to provide a code by which a local government or the Minister may undertake the planning of an area to facilitate orderly development and the protection of the environment; and

(b)       to provide an adequate framework for a person to apply for approval in respect of a development proposal and to provide for appropriate appeal rights in respect thereof."

Section 2.18 relates to the amendment of a planning scheme at the instance of the Minister or

a local government. The party proposing the amendment must give public notice by newspaper

advertisement. Certain proposals, with respect to particular allotments, must, additionally, be notified

by the display of a notice on the land, and by service on the owner and adjoining owners and others.

There is provision for lodgment of submissions with respect to the proposal, by interested persons,

with the chief executive. Section 2.19 deals with the assessment of proposals for amendment by the

"proponent" itself - specifying the matters to be taken into account, obliging it to consider the

submissions lodged, and prescribing how the proponent should go about progressing or terminating

the proposal.

Those provisions establish an apparently comprehensive, and arguably exhaustive, set of requirements for the local government's formulation, advertisement and other advancement of proposals and decisions such as these. (Compare Makucha v. Albert Shire Council (1996) 1 Qd

R 53, 61 and (1993) 1 Qd R 493, 497.) The Judge held that their scope was exhaustive with relation

to the field of matters they concern. The legislature has plainly declared its intention that the provisions

be read in that way, as emerges unequivocally from s.1.3.

Mr Keim, who appeared for the appellants, invited us to conclude that notwithstanding s.1.3,

the provisions of ss.2.18 and 2.19 should not be regarded as an exhaustive prescription of the rights

of those affected or likely to be affected by such matters. In my opinion, however, there is no

sufficient reason to warrant the court's departure from that plain statement of legislative intent, an

expression of intent, moreover, consistent with the detailed nature of the provisions which follow.

Ignoring the provisions of s.1.3 and reserving to the court the power to reconsider the

adequacy, in particular cases, of the procedure otherwise set up by the provisions in ss.2.18 and 2.19,

would necessarily inject considerable uncertainty into the whole process - in circumstances where the

legislature has apparently striven to secure certainty.

In this case, for example, where the only legislative requirement for notice is by newspaper

advertisement, how far could the court embellish that obligation? If notification by letter were to be

required, would it be limited to the registered owners of the directly affected land, or would it extend

to the owners of property which could be affected, but more remotely so? What of the position of

purchasers under uncompleted contracts, in relation, say, to land which would be immediately

affected? If a local government came to know of the existence of such a person, but only after the

statutory period for notification had expired, would a court require late notification, with the arguable

consequence that the whole process should be recommenced? Would a requirement for due notice

extend to revealing to one affected resident points made in the submission of another which might be

considered contrary to the former's interest, so as to permit the former to respond? There is a host of imaginable situations in which it might be suggested that rights not currently prescribed should, in

the interests of fairness, be accorded.

The modern form of the legislation reflects an apparent wish in the legislature to define and

confine the obligation of the local government within practicable bounds. The provisions of s.1.3 do in

my opinion effectively oblige the court in these circumstances to regard that prescription of the obligation

relevant here - as found in the notice requirements of ss.2.18 and 2.19 - as exhaustive of the matters

it purports to cover.

Mr Keim particularly challenged the learned Judge's approach on the basis that it ignored the

process of analysis referred to in Kioa v. West (1985) 159 CLR 550, 585. He submitted that while

one must certainly look to the terms of the relevant legislation in order to determine whether or not the

requirements of natural justice have been excluded, one's inquiry should not be so confined when

determining the content of the natural justice obligation. He criticized the Judge's approach as

impermissibly confined merely to the legislation at that second stage. However one reads Kioa, the

learned Judge must be taken to have regarded the legislation, through its clear statement of legislative

intent, as of itself unequivocally prescribing the content of any applicable natural justice or procedural

fairness obligation. Once one acknowledges the force of the legislation in that respect, then because

that feature was itself definitive, regardless of other particular circumstances, his Honour's conclusion

is seen to be unimpeachable.

In my view the learned Judge was plainly correct in the conclusion to which he came. I would

dismiss the appeal and order the appellants to pay the first and second respondents' costs to be taxed.

The third respondent took no active part in the proceedings, preferring to abide the order of the court.

There should be no order as to costs as between the appellants and the third respondent.