Nelly Woibo and Cape York Land Council -v- Cook Shire Council and Barry James Clark, Marilyn Teresa Clark, Eric Clark and Susan Louise Clark
[1999] QSC 349
•23 November 1999
IN THE SUPREME COURT
OF QUEENSLAND
CAIRNS No. 10 of 1998
Before the Hon. Justice Jones
[Nelly Woibo and Cape York Land Council -v- Cook Shire Council and Barry James Clark, Marilyn Teresa Clark, Eric Clark and Susan Louise Clark] [1999] QSC 349
BETWEEN: NELLY WOIBO
First Applicant
AND: CAPE YORK LAND COUNCIL
Second Applicant
AND: COOK SHIRE COUNCIL
First Respondent
AND:BARRY JAMES CLARK, MARILYN TERESA CLARK, ERIC CLARK AND SUSAN LOUISE CLARK
Second Respondent
JONES J
Judgment delivered 23rd November, 1999
An extension of time within which this application is made is granted to 4 June, 1998.
The decision is reviewable and the respective applications by Clark and Cook Shire for the application to be dismissed are dismissed.
Catchwords: JUDICIAL REVIEW - STAY OR DISMISSAL - Cook Shire Council approved quarry development - Application for Statutory Order for Review of this decision - Motions to dismiss the application - Advertising requirements - Mandatory or Directory - Decision is reviewable - Motions dismissed.
Counsel:Mr Keim for the First and Second Applicants
Mr Jonsson (sol.) for the First Respondent
Mr Cochrane for the Second Respondents
Solicitors:MacDonnells for the First Respondent
Marino & Smith for the Second Respondents
Hearing date: 22nd June, 1998.
IN THE SUPREME COURT
OF QUEENSLAND Application No. 10 of 1998
CAIRNS
BETWEEN: NELLY WOIBO
First Applicant
AND: CAPE YORK LAND COUNCIL
Second Applicant
AND: COOK SHIRE COUNCIL
First Respondent
AND:BARRY JAMES CLARK, MARILYN TERESA CLARK, ERIC CLARK AND SUSAN LOUISE CLARK
Second Respondent
REASONS FOR JUDGMENT
BEFORE THE HONOURABLE JUSTICE JONES
DELIVERED THE TWENTY-THIRD DAY OF NOVEMBER, 1999
Before me are three applications as follows:-
(i)A joint amended application on behalf of Ms. Nelly Woibo and Cape York Land Council (“CYLC”) for a statutory order for review of decisions made by Cook Shire Council on 14 August, 1997 and on 19/20 January, 1998 leading to an approval for a proposed quarry development; and for an application for an extension of time for the making of the amended application.
(ii)A motion on behalf of the Cook Shire Council (“Cook Shire”) for dismissal of the application by Woibo and CYLC; and
(iii)Notice of motion by Barry James Clark, Marilyn Terese Clark, Eric Clark and Susan Louise Clark (hereafter collectively referred to as “Clark”) also for the dismissal of the amended application.
It was agreed that I should hear argument on the application for extension of time and each of the applications to dismiss the amended application. In the event that Woibo and CYLC were successful, then directions could be given for the further disposition of the amended application.
Background
Clark is the registered proprietor of land described as Lot 1 on Registered Plan 902192, Parish of Annan, County of Banks on which it was sought to establish a quarry for the winning of gravel. The land is located in the local authority area of the Cook Shire. The subject land is in close proximity to, but not contiguous with, the boundary of the Black Mountain National Park. Black Mountain and the surrounding countryside is of particular significance to the indigenous community of the area. Black Mountain itself is a designated sacred site. Because of these features, concerns were raised about a quarrying operation being undertaken in the area and particularly its likely effect on the amenity of the National Park and its impact on the local indigenous community.
Ms. Woibo was born 30 June, 1928 and was at the time of her application, 70 years of age. She identifies with the Guugu Yalanji and Guugu Yimithirr Language Groups. She claims to be the traditional owner for the country surrounding and including Black Mountain and also including the site of the proposed quarry and thus identifies her interest in requiring an assessment of the likelihood of environmental or cultural detriment associated with the proposal.
The CYLC is a representative body pursuant to s.202 of The Native Title Act 1993 (Cth). It is also an incorporated association pursuant to the Aboriginal Councils and Associations Act 1976. Its objects inter alia state -
“6.2Without limiting the generality of Rule 6.1, and in recognition of the severe problems encountered by Aboriginal people and the disadvantaged circumstances in which they find themselves. The Land Council shall advance its principal object by:
(a)facilitating return of traditional Aboriginal land to Aboriginal persons, and obtaining secure title to that land;
(b)ascertaining the wishes, aspirations and opinions of Aboriginal persons relating to the management, use and control of traditional Aboriginal land within the Cape York Peninsula, and promoting and providing assistance to give effect to those wishes, aspirations and opinions;
...
(d)encouraging the continuation and preservation of traditional Aboriginal culture amongst Aboriginal persons;
...
(g)assisting Aboriginal persons to protect sacred sites and sites of significance; and
(h)assisting Aboriginal persons to return to their traditional lands.”
The quarry proposal was first mooted on 28 July, 1997 when Clark sought the waiver of the requirement to provide an environmental impact statement on the basis that the area of the quarry site would not exceed 2 hectares and the amount of material won would not exceed 10,000 cubic metres in any year. The Council acceded to this request at its meeting of 11/12 August, 1997 and notified Clark to this effect by letter dated 14 August, 1997. This decision of Cook Shire was authorised pursuant to regulation 16 of the Local Government (Planning & Environment) Regulation 1991 (“the regulations”). This request was not required to be advertised and the Cook Shire decision did not come to the notice of either Ms. Woibo or CYLC. The applicants seek a review of this decision.
On 12 December, 1997 (see ex. “AKM 4") Clark lodged an application to the Cook Shire for town planning consent for the quarry development. The scope of the quarry operation was detailed in a consultant’s report of Kershaw & Co., which accompanied the application.
The required advertising for objections was published on Thursday, 18 December, 1997 with a closing date for objections on or before 6 January, 1998. The CYLC does not purchase the newspaper in which the application was advertised and of course it, being neither an adjoining nor an elected representative, was not required to be directly informed. See s.4.12(4) of the Local Government (Planning & Environment) Act 1990 (“the PEA”).
On Monday, 22 December, 1997 a phone message was received by a Mr. Tanna, an employee of CYLC, informing him of the advertised proposal. He was not qualified and simply left a message to this effect for one of the qualified legal officers employed by CYLC. Two of the three legal officers employed by CYLC were, at this time, on annual leave. One of the two was due to return on 5 January, 1998 and the other on the 12 January, 1998. As a consequence, the first time any qualified person was aware of the Clark application was on 5 January, 1998.
The legal officers then set about seeking instructions from the traditional owners whose interests they were retained to protect. This was not an easy task. Firstly, the traditional owners had to be identified and then some contact made. At this time communications were difficult because much of the area was subject to flooding and roads were impassable. Despite the efforts of the legal officers, instructions were not obtained from traditional owners until after the 11 February, 1998 on which date the Clark proposal was approved by Cook Shire.
Other persons objected to the Clark proposal and those objections were lodged within time. One such objection lodged on behalf of the Black Mountain Valley Preservation Group, the principal spokesperson for which was a Mr. Glue. An application was also lodged on 12 January, 1997 by the Gungarde Aboriginal Corporation, purportedly acting on behalf of the traditional owners of the country surrounding and including the proposed quarry site. This objection was not within the time prescribed in the public notice and was therefore regarded as being late. This late objection does not appear to have been considered by Cook Shire but the Corporation was formally advised of the Cook Shire decision. It was subsequently established that Ms. Woibo was not in any event a member of the Gungarde Aboriginal Corporation, but this entity is an organisation that would have the support and assistance of CYLC. Although the Gungarde objection was in the same terms as Mr. Glue’s objection, the fact that it was made on behalf of a different representative group ought to have resulted in its carrying additional weight, had the Cook Shire regarded it as available for consideration.
The Cook Shire approval was subject to conditions which specifically limited the size of the quarry site to 2 hectares and the quantity of material to be won to 10,000 cubic metres per annum.
An appeal against this conditional approval was lodged by Mr. Glue on behalf of the Black Mountain Valley Preservation Group. The grounds of the appeal were to the effect that the application was not duly made in accordance with s.4.1(2)(b) of the Act and that it was defective because it was not accompanied by an environmental impact statement as required by s.8.2 of the Act. The appeal also challenged the Cook Shire’s decision in August, 1997 to waive the requirement for an environmental impact statement to be provided. The grounds of appeal also included the lack of consultation with the traditional owners and a failure to make an assessment of the impact on the local indigenous community.
Mr. Glue’s appeal was lodged on 27 February, 1998. Thereafter followed discussions between the legal advisers of Mr. Glue and the CYLC about collaboration in the prosecution of Mr. Glue’s appeal. These discussions ceased when Mr. Glue withdrew his appeal on 16 April, 1998.
It was not until 15 May, 1998 that the legal officers of CYLC identified Ms. Woibo as the appropriate traditional owner of the land. By this date, any opportunity to challenge the decision of Cook Shire in the Planning and Environment Court had long since been lost and a decision was taken to challenge the decision by way of statutory order for judicial review. The application was duly made on 20 May, 1998 and amended on 4 June, 1998.
Extension of Time
I should deal firstly with the decision of Cook Shire of 14 August, 1997. There was nothing irregular about this decision. There was no requirement to notify the applicants of Clark’s request nor of the decision. The allegation that the decision was based on incorrect facts was not made out, as the terms of the decision allowed only what was permitted under the regulation. In my view, this decision was properly made and is not reviewable by this court.
Turning then to the two decisions leading to the consent being granted, Ms. Woibo was not a person to whom the decision of the Cook Shire was given. Her position in making this amended application is to be considered in accordance with s.26(3) of the JRA. This subsection requires my forming the opinion whether the application was made within a reasonable time after the decision. By virtue of s.26(4) I must have regard to-
(i) the time when Ms. Woibo became aware of the decision; and
(ii) as subsec.3(b) applies, the fact that the prescribed period otherwise is 28 days.
The position of CYLC is somewhat different since it was acting as an adviser to the Gungarde Aboriginal Corporation. By reason of this position it received notice of the Cook Shire decision upon its receipt of the Shire letter of 27 January, 1998.
In support of the request to extend time, the first matter to which my attention was directed was that the advertisement was published and objections sought during the Christmas/New Year holiday period when many people are away from their workplace.
An examination of the timetable, followed in respect of the application for consent, reveals non-compliance with s.4.12 of the PEA. The public notice of the application as required by subsection (3) of s.4.12 was undertaken entirely on 18 December, 1997. See ex. “AMK 8”. The last day for the receipt of objections was advertised to be 6 January, 1998. This date is consistent with that noted on the Cook Shire consent application form and would appear to have been noted there on the date of receipt of the consent application.
The public notice being published on 18 December, 1997 with closing of objections on 6 January, 1998 did not allow the minimum period of 10 working days as required by subsection (3) of s.4.12 of the PEA. In fact, taking account of public holidays and weekends, there were only 9 working days in this period.
As this point had not been discussed in argument before me, I raised the question of whether this non-compliance with the statutory requirement had any effect on the validity of the first respondent’s decision to grant consent and whether it was a factor in the decision by Mr. Glue to withdraw his appeal to the Planning and Environment Court.
Written submissions from each party dealing with this point were received between 17 June – 18 October, 1999. The applicants now seek to further amend their application to apply for orders referable to the fact that there was non-compliance with s.4.13(5) of PEA and that the first respondent could not have been satisfied that such non-compliance did not adversely affect the awareness of the public.
I accept the submissions of the respondents that non-compliance with the statutory time limits or notification does not of itself invalidate the first respondent’s decision. It is clear enough that the legislative scheme for consent applications permits the local authority to excuse such non-compliance (s.4.13(2) of PEA) and for the Planning and Environment Court to do so on an appeal (s.7.1(3B) of PEA), provided that each is respectively satisfied “that the non-compliance has not adversely affected the awareness of the public of the existence and nature of the application nor restricted the opportunity of the public to exercise the rights conferred by section 4.12”.
The decision of the High Court in Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1] discusses the inappropriateness of the earlier distinction in legislative requirements between mandatory and directory provisions. In the joint judgment of McHugh, Gummow, Kirby and Hayne JJ the following passage appears:-
“In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood (1978) 1 NSWLR 20 in criticising the continued use of the “elusive distinction between directory and mandatory requirements” and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the enquiry, not the beginning. That being so, a Court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to “the language of the relevant provision and the scope and object of the whole statute” [2].
[1] (1998) 194 CLR 355
[2] Ibid at pp.390-1
The language of the relevant sections of the PEA and the object of that statute, requires an errant applicant to show to the local authority or the Planning and Environment Court that non-compliance has not restricted the opportunity for the public to exercise its rights conferred by the relevant provisions. Because the non-compliance in this instance was not discovered, no attempt has been made by Clark to satisfy this requirement and of course no opportunity to do so arose before the Planning and Environment Court.
It is not possible, and indeed not necessary, for me to attempt to determine how the discretion reposing in Cook Shire to waive non-compliance could or might have been exercised. However, I would be reluctant to conclude in the circumstances of this case, particularly when Clark chose to advertise in the Christmas / New Year holiday period and adopted the minimum timeframe possible, that the shortfall of one day would not have made a difference. It is clear from the decision of the Court of Appeal in Hannay v The Brisbane City Council [3] that no review can be undertaken if the minimum timeframe allowed by statute is complied with however unfairly it might impact upon a potential objector. See per Fitzgerald P at p.54 –
“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 and 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.”
[3] (1999) 2 QdR 54
De Jersey J (as he then was), endorsing the trial Judge’s reference to the relevant statutory provisions as forming a code, said at p.56:-
“Those provisions (s.2.18 and 2.19) 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 QdR 53,61 and (1993) 1 QdR 493,497). The Judge held that their scope was exhaustive with relation to the field of matters they concerned. The legislature has plainly declared its intention that the provisions be read in that way, as emerges unequivocally from s.1.3.”
Section 4.12(5) of the PEA provides a minimum standard. The time for objections to be lodged is determined by an applicant for consent. It was open to Clark, having regard to the business disruptions and the practice of people (including professional advisers), to take holidays in this period, to provide for a longer period for the making of objections. The fact that Clark chose not to do so, and the presence of the difficulties which the festive season gives rise to, are matters which a local authority, in the public interest, ought to have regard in exercising its discretion under s.4.13(2) of the PEA.
It was suggested by the respondents that even if proper time had been allowed in the advertising, then the objection lodged by the Gungarde Aboriginal Corporation would not have been within time. Such a suggestion is not really to the point because the non-compliance placed Clark in the position of having to satisfy the Council of the matters referred to in s.14.13(2). In relation to the Gungarde Corporation, that would have been important because at the time the Cook Shire made its decision it would have been aware of Gungarde’s objection and the impact which the late filing of that objection would have had on Gungarde’s right to appeal. It was through the Gungarde Corporation that CYLC became aware of the Cook Shire position.
Notwithstanding that the CYLC had knowledge of the Cook Shire decision, it was not appropriate for it to bring an application pursuant to the JRA until instructed by the traditional owners. The affidavit of Edward Pocock details the extensive enquiries undertaken in order to establish who the traditional owners are. This included contacting Chris Anderson, Director of the South Australia Museum who had done anthropological research in the area and later to Mr. Ray Wood, Anthropologist. These efforts proved to be unsuccessful. Before and after these attempts were made, there was a considerable level of enquiry amongst Aboriginal persons in the north Queensland area which did not reach any consensus until 11 May, 1997 when Ms. Woibo was identified as the appropriate person. Whilst these enquiries were being undertaken, of course, there were discussions with Mr. Glue about collaboration in his appeal.
I am satisfied that the proper steps were taken in a timely way in an endeavour to identify the traditional owners of the land. Once Ms. Woibo was identified then the application for judicial review was instituted promptly. Both the lodging of the application and its subsequent amendment occurred well within the 28 day period.
I therefore allow an extension of time within which this application is to be made to 4 June 1998.
Strike out applications
Each of the respondents has moved, pursuant to ss.48, 12 and 13 of the JRA, to have the applications dismissed on similar, if not identical, grounds. Essentially the grounds are:-
(i) The application was out of time;
(ii) The application was not made within a reasonable time; and
(iii) Alternative review procedures were available.
The substance of the first two grounds have been considered in the determination of whether an extension of time should be granted. Having exercised my discretion to grant the extension for the reasons stated above, it is not necessary for me to further discuss this issue of the late institution of these proceedings.
Argument about the alternative remedy was based on both applicants having the opportunity to object to the proposal and thereafter, if not successful, to appeal to the Planning and Environment Court.
It is asserted that the merits of any objection by the present applicants as well as the effectiveness of the dispensing with the environmental impact statement would be more effectively determined by using the processes provided by the PEA. That assertion is undoubtedly correct but the question is, notwithstanding that point, whether there remains in terms of s.20 of the JRA a genuine basis for review.
The decision of the Cook Shire was made in certain circumstances where the first applicant was unaware of Clark’s proposal and where objections referrable to the second applicant’s interests were disregarded by Cook Shire. This latter situation should not, and probably would not, have occurred if Cook Shire had been made aware of Clark’s non-compliance with the legislative requirements. In the circumstances of that non-compliance, the failure to consider its effects as required by s.4.13(2) of the PEA to my mind constitutes a breach of the rules of natural justice and a failure to comply with stated procedures within the meaning of those terms for the purposes of s.20(2) of the JRA.
I am not prepared to conclude that the rights of the applicants to be made aware of Clark’s proposal and the rights of the public to object to the proposal are of such little weight that the right to be heard on a review application should be denied.
In terms of s.48 of the Judicial Review Act, I do not regard that any of the grounds for dismissal there set out have been established. I regard the applicants as having established a genuine interest in being heard in relation to the proposals and the conditions which might properly be imposed and the granting of any consent. Whether this is done in the context of a renewed application to the Cook Shire or by way of a review process provided under the JRA is a proper matter for the parties to discuss.
I take the view that the decision is reviewable and I therefore dismiss the respective applications made by Clark and Cook Shire for the application to be dismissed.
I reserve the question of costs for further argument which could coincide with the directions hearing for the further progress of this application.
I adjourn the directions hearing to the Applications List to be mentioned on 13 December 1999.
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