Supreme Court dismisses application for judicial review regarding a refusal to amend an environmental overlay map

In brief

The case of Trask Development Corporation (No. 2) v Moreton Bay Regional Council [2018] QSC 170 concerned an application for a statutory order of a review of the decision of Moreton Bay Regional Council (Council) to refuse an amendment to an environmental overlay map in a planning scheme. The Council subsequently applied to have the application summarily dismissed under rule 16 of the Uniform Civil Procedure Rules 1999 (UCPR) and section 48 of the Judicial Review Act 1991 (JRA).

The Court found that the "decision" was not a "decision" under the JRA and, in particular, did not affect the Respondent's rights. The Court therefore allowed the strike out application.

Background

The subject land, which is owned by the Respondent, is located within the Council's local government area and is subject to the Council's planning scheme.

The Respondent had cleared vegetation from the subject land and the Council had issued an enforcement notice. 

The Council subsequently rescinded the enforcement notice and the Respondent then requested that the Council's "Environmental Areas overlay mapping" be removed from the subject land, as the area no longer contained vegetation. 

The Council refused the request and the Respondent made an application for judicial review of the refusal in respect of which the Council applied for the application to be dismissed.

Grounds for dismissal

The Council sought a declaration that the application for judicial review had not been properly started and an order that the application be set aside or permanently stayed under rule 16 of the UCPR.

Relevantly, the Council argued as follows (at [23]):

1. the letter sent by Council refusing the mapping amendment request did not constitute or reveal any decision for the purposes of the JRA; or
2. alternatively, if the refusal of the mapping amendment request did constitute a decision under the JRA, then it was not a decision made under an enactment; and
3. the application for a statutory order of review does not comply with section 25(b) of the JRA as it does not appropriately outline the grounds and, therefore, should be struck out. 

In considering the Council's third submission, the Court found that although the Respondent's application for a statutory order of review was "an unsatisfactory document" that "required amendment before any final hearing could take place", it had met the requirements of section 25(b) of the JRA by providing sufficient information in the application.

Substance of the Respondent's application

In relation to the first issue, the Council submitted that the refusal did not constitute a decision to which the JRA applied because it was not final or operative and determinative. The Council relied upon the decision of the High Court in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33, which sets out the criteria for a reviewable decision being as follows (at [64]):

"A reviewable 'decision' is one for which provision is made by or 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 calling for consideration." 

The Council submitted that as the refusal was an initial decision in a multi-step process, which could potentially result in an amendment to the planning scheme, it was therefore not final or operative and determinative.

The Court disagreed with the Council and held that the refusal did in fact decide that there would be no further process. The Court applied a practical approach to the issue and found that the refusal determined whether the mapping amendment would be made and, therefore, was final and binding.

Was the decision made "under an enactment"?

Section 4 of the JRA relevantly provides that a decision for the purposes of the Act means as follows:

"(a) a decision of an administrative character made, proposed to be made or required to be made, under an enactment (whether or not in the exercise of a discretion); or

(b) a decision of an administrative character made or proposed to be made by an officer or employee of the State or a State authority or local government authority under a non-statutory scheme or program involving funds that are provided or obtained

(i) out of amounts appropriated by Parliament; or

(ii)  from a tax, charge, fee or levy authorised by or under an enactment."

To establish whether the decision was made under an enactment, the Court relied on the two criteria test set out in Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7, in which the decision must be expressly or impliedly required or authorised by the enactment and, secondly, that the decision must alter or affect the individual's legal rights.

In relation to the first criteria, the Respondent argued that the refusal was authorised by section 262(2) of the Local Government Act 2009 and therefore the decision was made under an enactment. The Court rejected the Respondent's submission and held that the authorisation contained in the Local Government Act 2009 was too general to constitute an enactment for the purposes of a decision.
 
In respect of whether the decision altered or affected the Respondent's legal rights, the Court found that the decision to refuse the mapping amendment did not affect the Respondent's legal rights. Therefore, the decision was not one to which the JRA applied. 

The Court disagreed with the Respondent's argument that the refusal affected its legal right in relation to the use and development of its land. The Court held that the Respondent did not have a right to develop the land, even if the request for the mapping amendment had been approved, and therefore the refusal did not infringe on its legal rights.

The Court granted the dismissal of the application for a statutory order of review of the refusal and held that the decision made by the Council was not one where the JRA applied.