Redland Shire Council v Bushcliff P/L

[1996] QSC 218

IN THE SUPREME COURT

OF QUEENSLAND  No. 8281 of 1996

[Redland Shire Council v. Bushcliff P/L]

BETWEEN:

REDLAND SHIRE COUNCIL
  Applicant

AND:

BUSHCLIFF PTY LTD (ACN 058 736 879)
  Respondent

REASONS FOR JUDGMENT  -  THOMAS J

Delivered:15 November 1996

CATCHWORDS:     ADMINISTRATIVE LAW - Judicial Review - Whether adoption by a Council of a draft strategic plan for the purpose of public exhibition is a "decision" of an administrative character made under enactment - Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321 applied - Ss.4, 31, 32 Judicial Review Act.

Stages at which reviewable decisions are made in steps to amend a planning scheme - ss. 2.18-2.20 Local Government (Planning & Environment) Act.

Counsel:Mr P. Lyons QC for the Applicant

Mr M. Hinson for the Respondent

Solicitors:King & Company for the Applicant

Corrs Chambers Westgarth for the Respondent

Hearing Date:   6 November 1996

IN THE SUPREME COURT

OF QUEENSLAND  No. 8281 of 1996

[Redland Shire Council v. Bushcliff P/L]

BETWEEN:

REDLAND SHIRE COUNCIL
  Applicant

AND:

BUSHCLIFF PTY LTD (ACN 058 736 879)
  Respondent

REASONS FOR JUDGMENT  -  THOMAS J

Judgment delivered 15 November 1996

This is an application by the Council under s.39 of the Judicial Review Act 1991 for a declaration that Bushcliff ("the Company") was not entitled to request a written statement of reasons in relation to an alleged "decision" of the Council.
           On 28 August 1996 the Council resolved:

"that the draft strategic plan - version 4 as tabled be adopted for the purpose of public exhibition in accordance with the Local Government (Planning & Environment) Act."

The entitlement of a person to make a request for a statement of reasons depends upon there being a decision to which Part 4 applies (s.32) and in turn this depends upon it being a decision to which the Act applies (ss. 31 and 4).  That in turn comes down to whether it is a decision of an administrative character made under an enactment.  It should be noted that the matter in respect of which the reasons are sought must be a "decision".  It is not sufficient that it be conduct engaged in for the purpose of making a decision, as for example under s.8 or s.21.
The primary question then is whether the resolution was a "decision" within the meaning of the words "decision to which this Act applies" in s.4. A number of cases, including Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321 suggest particular factors as relevant in answering that question. Counsel for the Company sought to rely upon a decision by White J in earlier litigation between these parties in which the Company sought an injunction against the Council restraining it from placing the new draft strategic plan on public display. Her Honour refused the injunction, and in the course of her reasons expressed the view that the decision in question was reviewable, that there was a serious question to be tried in relation to the validity of the decision, and that the injunction should be refused on considerations of the balance of convenience. Whilst according respect to the provisional conclusion of White J in that application that it was a reviewable decision, it is obvious that that conclusion was a provisional one in the context of an exercise in ascertaining whether there was a serious question to be tried. It was not suggested that any estoppel has been raised, or that I am in any way bound by that provisional conclusion. I have had the benefit of full argument on the question and will now turn to it.
           The answer depends on the proper construction of the Local Government (Planning & Environment) Act 1990 having regard to the nature of the function performed by a local authority when it initially proposes to amend a strategic plan.
A strategic plan is part of a "planning scheme" (s.2.1), and the adoption of a new or amended strategic plan is regarded as an amendment to a planning scheme (s.2.20(2)(b)). Ultimately only the Governor-in-Council may amend a planning scheme (s.2.20). Such applications may come before the Governor-in-Council by any one of three main streams (e.g. proposed by the Minister; proposed by an applicant under s.4.5; or proposed by a Local Government under s.2.18(2)). I am here concerned with an application of the last mentioned kind.
           If a Local Government wishes to effect a change to any one of the various components that comprise a planning scheme (e.g. a strategic plan), the legislative requirements, as it seems to me, contemplate the following procedure.

1.The Local Government proposes an amendment (s.2.18(2)(b)).

2.The Local Government gives public notice of the proposal, including by advertisement, and also gives notice to the Chief Executive (s.2.18(4) and 2.18(4)(A)).

3.The details of the proposal are kept open for public inspection for 60 days (the objection period) (s.2.18(6) and 2.18(7)).

4.Members of the public may obtain relevant data (s.2.18(8) and 2.18(8A)), and may make "submissions" in respect of the proposal (this term has replaced the previous reference to "objection").

5.The Local Government must consider every submission made to it (s.2.19(1)). Various criteria are prescribed to which the local government must have regard.

6.The Local Government must decide, by resolution, if the proposal should be proceeded with, with or without modifications, or whether it should not be proceeded with (s.2.19(3)).

7.If the decision has been to proceed, the Local Government, as proponent, applies for the approval of the Governor-in-Council by sending it to the Chief Executive within a prescribed time (s.2.20(1)).

8.The Governor-in-Council may then either approve the amendment, with or without modifications, or refuse it (s.2.20(6) and 2.20(7)).

One must consider at what point or points in this process the Local Government makes a "decision" or decisions which are subject to judicial review.  The submission on behalf of the Council is that the initial proposal of the Council (under s.2.18(2b)) is no more than a proposal setting out a preliminary view of the content of a new strategic plan, precedent to the carrying out of a deliberative process that might or might not lead to a decision to proceed which, if made at all, will be made under s.2.19(3).   It was submitted that the preliminary decision is not one which is final operative or determinative in relation to legal rights.
           Some support for these submissions may be thought to exist in Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321, 335-339, 341-343. Observations in Mason CJ's judgment (with which Brennan J agreed, and with which Deane J also agreed subject to some of his own remarks) include the following:-

".. a reviewable decision is a decision which a statute requires or authorises rather than merely a step taken in the course of reasoning on the way to the making of the ultimate decision" (p.336).

".. Acts done preparatory to the making of a 'decision' are not to be regarded as constituting 'decisions' for, if they were, there would be little, if any, point in providing for judicial review of  'conduct' as well as of a 'decision' "(p.336).

"To interpret 'decision' in a way that would involve a departure from the quality of finality would lead to a fragmentation of the processes of administrative decision - making and set at risk the efficiency of the administrative process" (p.337).

"(a) reviewable decision is one for which provision is made under a statute.  That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration.  A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment" (p.337).

"Another essential quality of a reviewable decision is that it be a substantive determination" (p.337).

The functions in issue in that case were those of a tribunal, and the language shows that Mason CJ had primarily in mind the determination of issues by tribunals, although the tests are not limited to such bodies.  There is some difficulty in directly transposing these statements to decisions by public authorities to engage in exercises that they are generally expected to perform, that is to say in the general non-adjudicative functions of administrative bodies.  Most things done by public authorities will affect members of the public, but many of them will not be a determination of an issue or of an individual right.  I mention this not to suggest that such activities may not be "decisions" for the purposes of the Judicial Review Act, but to emphasise the difficulty of a direct application of the above statements to activity not related to an adjudicating function.  The Judicial Review Act of course poses a single test irrespective of the nature of the administrative decision.  The Australian Broadcasting Tribunal case certainly makes it harder to regard "preliminary" determinations, or steps along the way to a major decision which is plainly reviewable, as being themselves "decisions" of an administrative character made under an enactment.
           Reference was made to a number of cases where the point "decision or not" was raised, namely Edelsten v. Health Insurance Commission (1990) 27 FCR 56, 67; Clyne v. Deputy Commissioner of Taxation (1986) 86 ATC 4710, 4714; State Bank of New South Wales v. CSD [1994] 2 Qd.R. 661, 668; Reid v. Commissioner of Police Service, No 1 of 1994, White J, unreported, 15 March 1994;  Mason v. Queensland Community Corrections Board, No.61 of 1994, Shepherdson J, unreported, 7 April 1994;  Amerio & Ors v. Queensland Rural Adjustment Authority & Ors, No 209 of 1995, Mackenzie J, unreported, 5 May 1995;  and Summerson v. CSD, No 134 of 1995, Mackenzie J, unreported, 4 August 1995.  Whilst respectfully agreeing with the results in those particular cases, the nature of the power being exercised is not sufficiently comparable in any of those cases to be of particular assistance in the present matter.  Moreover, five of those cases concerned administrative action in the course of procedures contemplated for the determination of individual rights.  Perhaps mention should also be made of Family Radio Ltd v. Australian Broadcasting Tribunal & Ors (1991) 28 FCR 584 in which Pincus J decided that a tribunal's determination as to the type of radio licence that ought to be issued was a reviewable decision. His Honour placed weight upon the fact that this was one of the distinct functions specifically provided for a tribunal to perform under the Broadcasting Act, and distinguishing the Australian Broadcasting Tribunal decision.  However none of the above cases presents a sufficient analogue to assist in resolution of the present matter.  It is necessary to look closely at the nature of the power being exercised and to see it in the context of other acts which may arguably be regarded as "decisions" in the course of performing a wider function.
           Plainly, a resolution to proceed after considering public submissions (under s.2.19(3)) is a reviewable decision.  This has expressly been held to be so by the Court of Appeal in Noosa Shire Council v. Resort Management Services Limited (1995) 1 Qd. R. 311. I should think that the eventual decision of the Governor-in-Council on the matter would likewise be a reviewable decision. The question here is whether the initial proposal of the Council, which may be of something quite different from that which is ultimately put forward under s.2.19(3), is also a reviewable decision.
           The Council's function under s.2.18(2)(b) was characterised in various ways.  Counsel for the company described it as a decision "whether and what to put on public display" or as a decision on what should be propounded as appropriate amendments.  He conceded that it is referred to as a "proposal" only, but submitted that it is still a decision which a statute requires to be made as part of an extended process.  He submitted alternatively that it is a final determination of the issue whether the council should commence procedures for amending the planning scheme in the respects proposed.  On that basis it would seem to be a mere procedural determination which it would be difficult to regard as a reviewable decision.  Counsel also referred to it as "a decision to amend a scheme" but that is simply not accurate.  At most it is a proposal to attempt to amend a scheme.
           Counsel for the Council relied upon the different terminology in ss.2.18(2) and 2.19(3), the former expressing a power to "propose to amend a planning scheme" whilst the latter obliges the Council "to decide" if the proposal, modified or otherwise, should be proceeded with.  The distinction is highlighted by the fact that the Act lays down no criteria to which regard should be had in deciding upon the making of an initial proposal, whereas considerable statutory guidance is provided as to what the Council is to take into account in making its decision under s.2.19(3).  That decision can be made only after consideration of submissions (s.2.19(1)), consideration of State Planning Policies, where relevant (s.2.19(1A)), consideration of conflict with existing strategic plans or development control plans (s.2.19(4)) and, in relation to amendments affecting identifiable individual allotments, consideration of a very detailed list of matters in s.2.19(2).
           A decision to propose an amendment is of course an important step, but it does not in any sense, legal or practical, resolve any substantive issue.  Essentially it raises issues for public input following which a substantive decision will be made.
           I have concluded that in the scheme of this Act, the initial proposal is not a "decision" made under an enactment.  To the extent to which the policy matters mentioned by Mason CJ are relevant, it may be noted that the requirement to provide reasons to any potentially aggrieved person who might ultimately be affected if the matter proceeds as originally advertised, along with the availability of judicial review, added to similarly available judicial reviews at the s.2.19 stage and the s.2.20 stage, would be a fragmentation of the processes of administrative decision making and be a definite clog upon its efficiency.  The proposal is something that does not necessarily bind the Council or anyone else as to the nature or content of a final decision.
I therefore uphold the Council's application under s.39 of the Judicial Review Act and  determine that the company is not entitled to a statement of reasons for the Council's resolutions of 28 August 1996.