Rhema Management Services P/L & Anor v Minister for Local Government and Planning

[1996] QSC 219

IN THE SUPREME COURT

OF QUEENSLAND  No. 3480 of 1996

[Rhema Management Services P/L & Anor v. Minister for Local Government and Planning]

BETWEEN:

RHEMA MANAGEMENT SERVICES PTY LTD
  (FORMERLY RHEMA PROJECT SERVICES PTY LTD)
  ACN 011 013 326
  First Applicant

AND:

MERLE NORMAN COSMETICS PTY LTD
  ACN 010 434 185
  Second Applicant

AND:

THE MINISTER FOR LOCAL GOVERNMENT AND PLANNING
  Respondent

REASONS FOR JUDGMENT  -  THOMAS J.

Delivered:15 November 1996

CATCHWORDS:     ADMINISTRATIVE LAW - Judicial Review - Application to review decision of Governor-in-Council refusing an application for rezoning of land and for amendment to a development control plan - Whether applicant entitled to seek amendment of a development control map where the land the subject of the application has not been conferred with "use rights" - Statement of reasons - error of law - Failure to take into account relevant considerations or failure to deal with one part of a dual application.  Sections 2.18(3)(d), 2.20 and 4.3(2)(e) of the Local Government (Planning & Environment) Act.

Counsel:Mr P. Lyons QC for the Applicant

Mr M. Hinson for the Respondent

Solicitors:M.F. Lyons & Associates for the Applicant

B.T. Dunphy, Crown Solicitor for the Respondent

Hearing date:               7 November 1996

IN THE SUPREME COURT

OF QUEENSLAND  No. 3480 of 1996

[Rhema Management Services P/L & Anor v. Minister for Local Government and Planning]

BETWEEN:

RHEMA MANAGEMENT SERVICES PTY LTD
  (FORMERLY RHEMA PROJECT SERVICES PTY LTD)
  ACN 011 013 326

First Applicant

AND:

MERLE NORMAN COSMETICS PTY LTD
  ACN 010 434 185

Second Applicant

AND:

THE MINISTER FOR LOCAL GOVERNMENT AND PLANNING

Respondent

REASONS FOR JUDGMENT  -  THOMAS J.

Judgment delivered 15 November 1996

This is an application to review a decision of the Governor-in-Council refusing an application presented by the Redland Shire Council on 18 January 1995 for rezoning of certain land and for an amendment to the relevant development control plan.  Counsel have reduced the multiple grounds in the application to one main point, and have asked me to determine the application on this ground, namely error of law disclosed in the reasons.

Parties

It will be noted that the applicant is not the Council, but rather persons who manage or own the land which they desire to rezone.  This would seem to be the consequence of the fact that the original applications were applicant-initiated.  Under s.4.5(1) of the Local Government (Planning & Environment) Act 1990, where an application for amendment of a planning scheme is approved by the local government, followed by an appeal to the Planning and Environment Court, followed by a withdrawal of the appeal (as happened in this case) the local government is required to apply to the Governor-in-Council for that amendment. The applicants would seem to have status or to be persons aggrieved under s.7 of the Judicial Review Act by reason of their status as the original applicants in this procedural stream.  For reasons that will later emerge, there is some difficulty associated with their right to make the second part of their application, but no point was taken in relation to their status as persons aggrieved by the decision that is now sought to be reviewed. 

Similarly no point was taken as to the appropriateness of "the Minister for Local Government and Planning" as the respondent in these proceedings.  Under the Act the decision would seem to be that of the Governor-in-Council, though no doubt that decision is taken on the recommendation of the Minister.  The Minister at the time (Mr Mackenroth) advised the Council and the other interested parties on 13 December 1995 that he had considered all relevant representations and had recommended to the Governor-in-Council refusal of the application.
The Governor-in-Council accepted the Minister's recommendation and refused the application formally on 14 December 1995. A request for a statement of reasons produced a ten-page letter dated 28 March 1996, signed by Mr Mackenroth. There had been a change of government in the meantime, but Mr Mackenroth has been prepared to accept responsibility for the statement of reasons, and nothing turns on the persona of the Minister. The respondent "Minister" is no doubt named as the relevant party under s.53 of the Judicial Review Act, and no point has been taken on the question whether this refers to the minister at the time when the decision was made, to the present holder of the office, or to the office itself.

Facts

Both the original application to the Council and the Council's eventual application to the Governor-in-Council, were for two changes to the planning scheme, namely:

(a)to rezone their land from Rural Non-Urban Zone to Special Facilities (Habitat Protection and Special Residential Subdivision) Zone; and

(b)to amend Development Control Plan No. 1 from Rural Non-Urban designation to Special Facilities (Habitat Protection and Special Residential Subdivision) designation in respect of the said land.

Both forms of relief were necessary, because the Local Government Planning & Environment Act prevents a council from rezoning land inconsistently with what is indicated in a development control plan.
           The subject land was in an area subject both to a development control plan and to a strategic plan.  On the strategic plan map the subject land was designated Rural Non-Urban and a habitat significance area.  The strategic plan also provided for the possibility of housing development which takes account of habitat protection values and needs in non-urban settings in selected areas where it could be demonstrated that dwellings can be accommodated.  The implementation provisions for habitat significance areas provided that areas with such designation in the strategic plan would be considered for specialised forms of residential development in located in areas "to be so designated in Development Control Plan 1" subject to satisfying certain criteria.  At the time of the decision in question, no habitat significance areas in the strategic plan had been so designated in the development control plan.
           It follows that without an amendment of the DCP to provide such a designation, residential development of the land would be inconsistent with the current designation of the land on the DCP, and also with the implementation provisions of the strategic plan, though not necessarily inconsistent with the aims and objects of habitat significance areas.  In short, the applications could succeed, but only if both were approved.
           The Council approved the applications on 14 September 1994.  An appeal was brought to the Planning and Environment Court by an objector,  The Koala Action Group.  That appeal was resolved by agreement.  The Council then, as required by s.4.5, made application to the chief executive for approval by the Governor-in-Council, for the rezoning of the land and the amendment of the DCP.

Procedure
           It is necessary now to note a difficulty which may not have been noted by the applicants or by the Council at the time.  The applications were lodged pursuant to s.4.3(1) of the Act.  Section 4.3(2) provides:

(2)  An application under subsection (1) is limited to -

(a)the zoning or rezoning of land (other than pursuant to sections 4.6 or 4.9), whether or not the zoning or rezoning is pursuant to section 4.11;

(b)the amendment of conditions attached to an approval under section 4.4, 4.7 or 4.9;

(c)the amendment of a use -

(i)however specified in respect of the particular zoning which relates to the land the subject of the application;  and

(ii)noted on the relevant zoning map;

(d)the amendment of a regulatory map;

(e)the amendment of a development control plan map in respect of the land the subject of the application where the map confers use-rights."

Within the local government area for Redland the relevant development control plan map confers "use rights" for some areas of land, but not with respect to the land the subject of these applications.  It seems to me that under s.4.3(2)(e) an applicant has no right to seek the amendment of a development control plan map unless the land the subject of the application has been conferred with "use rights".  An alternative submission, to the effect that sub-paragraph (e) allows such an application where there is any land in the district the subject of use rights does not in my view suggest the correct construction.  It follows that the original application to the Council, insofar as it sought amendment of the development control plan map, was incompetent.
           However it does not follow that the Council was incompetent to apply in due course to the Governor-in-Council for any necessary amendment of a development control plan map.  It had the right to do so under s.2.18(3)(d) and 2.20.  Those sections create a different procedural stream to an applicant-initiated amendment, but the provisions respecting public advertising and review in each stream are substantially similar.  It is to be inferred that whether or not the Council adverted to the incompetence of the second limb of the applicants' application or not, it was prepared to make the necessary application on its own behalf in due course to the Governor-in-Council.  If it favoured allowance of the rezoning amendment that would be a necessary pre-condition to its allowance.  Whilst some irregularity may be apparent in the way in which the proceedings went forward, in the end neither party contends that the procedural streams were substantially different or that the Governor-in-Council was precluded from dealing with both aspects of the application, even though one part of the application may be taken to be made by the Council on behalf of the applicants, and the other by the Council on its own behalf.  The Governor-in-Council, it may be noted, has power to approve applications under s.2.18 notwithstanding some procedural non-compliance (s.2.20(8)).

Reasons for the decision
           On page 4 of the statement of reasons, the first finding under the heading "Findings on Material Questions of Fact" is:

"Pursuant to the requirements of sections 2.19(4) and 4.4(5A) of the LGPE Act, the application for amendment conflicts with the relevant Strategic Plan and Development Control Plan 1 for the Redland Shire.  There were not sufficient planning grounds to approve the application despite the conflict;"

The difficulty with this is that the application asked for the necessary amendment of the relevant development control plan.  Refusal of either part of the application on the ground that it "conflicts" with the current development control plan seems to reveal circular reasoning, or a failure to consider a material part of the application.  In this situation the conflict is immaterial;  a wider issue has to be addressed.  The same approach continues into the next page where it is further stated:

". . The Council introduced the Habitat Significance provisions into its planning scheme to provide for development which recognised the habitat protection values in areas to be so designated in Development Control Plan No. 1."

Finally, under the heading "Reasons for the Decision" the first-mentioned reason is "I consider that the proposed amendment to the planning scheme is contrary to the Council's Strategic Plan and Development Control Plan 1".  This is followed a little later by the statement "Although the habitat significance area designation permits habitat sensitive residential subdivision in areas so designated in the Development Control Plan 1, to date no such areas have been designated".
           On the whole there seems to have been either a fundamental misconception of the dual nature of the application or a seriously inappropriate statement of reasons.  It has occurred to me that the then Minister would have been entitled to reject the second part of the application (the requested amendment to Development Control Plan 1) on the ground of procedural defects in that, assuming it to be the Council's own proposal under section 2.18(3)(d), not all the necessary procedural steps had been taken.  However that point is not made in the reasons, and it does not appear to have been adverted to.  Indeed, counsel for the Minister expressly disclaimed any right to rely on procedural inadequacy, submitting that the Minister regarded that part of the application as being made under s.2.18 and submitting that it was plain that the Minister had not refused the application on any procedural defect.  This may well be so, as there are several points in the statement of reasons where there is a double reference to the two procedural streams, e.g. references to ss.2.19(e) and 4.4(5A).  It is also to be noted that upon such an application (under s.2.18) the Governor-in-Council may approve an amendment notwithstanding non-compliance with that section, if satisfied that the non-compliance did not adversely affect the awareness of the public of the existence and nature of the proposal and that it did not restrict the opportunity of the public to exercise rights under s.2.18 (s.2.20(8)).
           While that power has not to this stage been expressly exercised, it remains available for exercise if the matter is referred back to the Minister and Governor-in-Council for further consideration.
           The principal submissions on behalf of the Minister were that the application to amend the Development Control Plan was "ancillary" and incidental to the rezoning application;  and that both parts of the application were in fact considered and dealt with.  In relation to the first submission, it would be more accurate to say that the application to amend the Development Control Plan was a condition precedent to success in the rezoning application.  Both were integral parts of the application.  So far as the second part of the submission is concerned, it is true that reference is made to both s.2.19(4) and s.4.4(5A), and some observations suggest that some account was taken of some factors relevant to both matters.  The tests under those two sections of course are virtually identical.  But if one reads the reasons as a whole, it is inescapable that the present contents of Development Control Plan 1 have been used as a principal reason for rejecting the rezoning application.  There is no clear consideration of or rejection of the application to amend it.
I therefore consider that the Minister and in turn the Governor-in-Council erred in law in failing to consider the application by the Council to amend Development Control Plan 1, and that this in turn prevented proper consideration of the application for rezoning. In so holding I simply identify an error under s.20(2)(f) of the Judicial Review Act and of course express no view on any question of merit.  The current determination should be set aside, and the matter is now once again at large and is referred to the Minister for further consideration in accordance with law.