Westfield Ltd v Gold Coast City Council

Westfield Limited and Hawaii Investments Pty Ltd have brought separate proceedings against the Gold Coast City Council in relation to the council’s decision to propose amendments to the Albert Corridor Development Control Plan. Westfield Limited intends to develop a major retail shopping centre at Helensvale, and Hawaii Investments Pty Ltd own land in Helensvale. Both applicants claim the council’s decision is invalid due to the council taking into account irrelevant considerations, failing to take into account relevant considerations, exercising power for an ulterior purpose, and proceeding on an erroneous view of the facts. The applicants also seek consequential relief in the form of statutory orders of review.

The council’s decision to propose the amendment to the Albert Corridor Development Control Plan was made in response to the risk of ongoing legal disputes in the event that Westfield’s application for rezoning fails or is withdrawn. The council’s intention is to ensure that as far as possible the risk of further litigation is minimised, and that the development of Helensvale occurs in a way that does not threaten or delay the development of other existing or proposed higher order centres. The applicants claim that the council’s decision is invalid because it was motivated by the risk of future litigation, which is irrelevant to the decision to amend the scheme. The court found that the council’s decision was not affected by taking into account irrelevant considerations. The council’s decision to amend the scheme was made in the context of existing legal proceedings and the council was entitled to consider the risk of future litigation as a relevant planning consideration. The council’s decision to amend the scheme was not motivated by an ulterior purpose of influencing the outcome of the existing appeal, but rather to address legitimate town planning concerns.

The applications were dismissed with costs.

It is open to a council to amend an existing planning scheme where that amendment is motivated by legitimate town planning considerations. The risk of future litigation is a relevant consideration in the context of the council’s intention to avoid ongoing legal disputes.