Landel Pty Ltd v Hinchliffe - [2009] QSC 408

SUPREME COURT OF QUEENSLAND

CITATION: Landel Pty Ltd v Hinchliffe & Anor [2009] QSC 408 PARTIES: LANDEL PTY LTD ACN 010 889 193
(applicant)
v
STIRLING HINCHLIFFE, MINISTER FOR INFRASTRUCTURE AND PLANNING
(first respondent)
and
MACKAY REGIONAL COUNCIL
(second applicant)

FILE NO/S: 12743 of 2009

DIVISION: Trial

PROCEEDING: Application

ORIGINATING COURT:

Supreme Court

DELIVERED ON: 24 November 2009

DELIVERED AT: Brisbane HEARING DATE: 24 November 2009
JUDGE: Fryberg J

ORDERS: 1. Declare that the decision of the First Respondent on 26
October 2009 pursuant to section 3.6.5 of the Integrated Planning Act 1997 to call in the Applicant’s development application to the Second Respondent dated 11 December 2007 for a development permit for material change of use for a “Homemaker Centre” on land located at Holts Road and Mackay-Bucasia Road, Richmond in the State of Queensland on land more particularly described as Lot 1 on SP141690, Lot 2 on RP 897382, Lot 4 on SP118647, Lot 1 on SP118647,
Lot 3 on SP111688 and Lot 2 on SP138968 is unlawful and of no effect.
2. Order that the First Respondent pay the Applicant’s and second Respondent’s costs of and incidental to the application to be assessed.

CATCHWORDS: Administrative law – Judicial review – Grounds of review – Procedural fairness – Hearing – Notice to persons affected –

Necessity – Ministerial decision to call in development application

Environment and planning – Environmental planning – Development control – Applications – Consent authorities – Determination of application by Minister or State Authority – Ministerial power to “call in” for determination – Scope of power – Procedural fairness

Integrated Planning Act 1989 (Qld), s 2.3.1, s 3.6.5, s 3.6.6,
s 3.6.7

Annetts v McCann (1990) 170 CLR 596, [1990] HCA 57,
cited
Grollo Australia Pty Ltd v Minister for Planning [1993] 1 VR 627, cited
Kioa v West (1985) 159 CLR 550, [1985] HCA 81, cited
Medway v Minister for Planning (1993) 30 NSWLR 646, considered
Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6, considered

COUNSEL: Applicant: G Thompson and M Plunkett
First respondent: P Freeburn SC and K Mellifont Second respondent: C Hughes SC and S McLeod

SOLICITORS: Applicant: MacDonnells Law
First respondent: Crown Law
Second respondent: McCullough Robertson

HIS HONOUR: In December 2007 the applicant, Landel Pty Ltd, which I shall describe simply by its first name, lodged a development application with the Mackay Regional Council, the second respondent, for approval for a development by way of material change of use to enable land to be used for retail showrooms and other retail applications.

In due course the application, which was impact assessable, was advertised and a company called W A Stockwell Pty Ltd made

a submission to the Council objecting to the granting of

approval. The Council referred the application to the Department of Main Roads as a referral agency, and that agency responded, in effect, that it had no objection to the application although it had some concerns.

In due course…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] QSC 408
Decision Date: 24 November 2009

CaseChat Overview and Summary

Landel Pty Ltd, the applicant, brought an action against Hinchliffe, the Minister for State Development, Infrastructure and Population, and the City of Townsville, the consent authority, seeking judicial review of the Minister's decision to call in a development application from the applicant for a development permit. The application was for a material change of use for a “Homemaker Centre” on land at Holts Road and Mackay-Bucasia Road, Richmond. The applicant sought to have the Minister's decision declared unlawful and of no effect. The legal issues at the heart of the case were the scope of the Minister's power under section 3.6.5 of the Integrated Planning Act 1997 to call in a development application and the requirements of procedural fairness when exercising that power. Specifically, the applicant argued that the Minister's decision to call in the application was unlawful because it did not comply with the requirements of procedural fairness, and that the Minister's power to call in an application was limited to situations where there were exceptional circumstances.

The court examined the statutory provisions and case law to determine the scope of the Minister's power to call in a development application and the requirements of procedural fairness. It found that the Minister's power to call in an application was not limited to situations where there were exceptional circumstances, but rather was a discretionary power that could be exercised in a wide range of circumstances. However, the court also found that the exercise of that power must comply with the requirements of procedural fairness, which include giving affected parties notice of the decision and an opportunity to make representations. The court held that the Minister's decision to call in the applicant's development application did not comply with these requirements, as the applicant was not given adequate notice of the decision or an opportunity to make representations. The court further held that the Minister's failure to comply with the requirements of procedural fairness rendered the decision unlawful and of no effect.

In light of the above, the court declared the Minister's decision to call in the applicant's development application unlawful and of no effect. The court also ordered the Minister to pay the costs of the application. This decision highlights the importance of ensuring that administrative decisions are made in accordance with the requirements of procedural fairness, and the consequences that may arise if those requirements are not met.

Orders

Orders of the court

1. Declare that the decision of the First Respondent on 26

October 2009 pursuant to section 3.6.5 of the Integrated Planning Act 1997 to call in the Applicant’s development application to the Second Respondent dated 11 December 2007 for a development permit for material change of use for a “Homemaker Centre” on land located at Holts Road and Mackay-Bucasia Road, Richmond in the State of Queensland on land more particularly described as Lot 1 on SP141690, Lot 2 on RP 897382, Lot 4 on SP118647, Lot 1 on SP118647,

Lot 3 on SP111688 and Lot 2 on SP138968 is unlawful and of no effect.

2. Order that the First Respondent pay the Applicant’s and second Respondent’s costs of and incidental to the application to be assessed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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