In brief

The case of Save Surfers Paradise Inc v Gold Coast City Council [2018] QSC 181 concerned an originating application by the Applicant to the Supreme Court of Queensland for declaratory relief and an injunction, in respect of decisions made by the Gold Coast City Council (Council) in relation to the sale of the subject land comprising the Surfers Paradise Transit Centre and Bruce Bishop Car Park. The Applicant challenged the Council's decision to sell the subject land on the grounds that the decision was: 

  1. in breach of public, private, or statutory trust; 
  2. in breach of a statutory obligation not to engage in misleading or deceptive conduct; 
  3. so unreasonable that no person in the position of the Respondent could have made the decision; or 
  4. made for an improper purpose or ulterior motive and not for good government or any other relevant purpose.

The Council argued that the originating application should be set aside under rule 16 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) on the basis that the Applicant did not have the requisite standing to challenge its decision. 

The Court considered whether the Applicant had a sufficient special interest which would entitle it to have standing to maintain the proceeding. 

The Court held that the Applicant did not possess the requisite special interest needed to entitle it to maintain the proceeding, as it could not establish an interest greater than that of the general public. The Court, therefore, set aside the Applicant's originating application. 

An originating process will be set aside if the party lacks a special interest

The Court noted that the relevant case law establishes that members of the general public or private organisations may only seek declaratory or injunctive relief, in respect of alleged public rights and duties, if they can establish that the decision would interfere with their private rights or that they have a special interest in the subject matter of the action. The Court also noted that it will not allow standing if only some members of the relevant entity have a special interest in the matter, or where the entity merely has objects or purposes related to the subject matter of the dispute. 

The Court also noted that in order for a party to demonstrate that they have a special interest in a matter, they must establish that they would be specifically affected by the decision to a substantially greater degree or in a significantly different manner to a member of the public. 

Applicant argued that it had a special interest as it acted for the Surfers Paradise business community who would have been be impacted by the proposed re-development 

The Applicant was formed after the Council made its decision to sell the subject land. 

The Applicant argued that it is acting in the interests of the Surfers Paradise business community in order to retain public assets constructed using public contributions and funding. The Applicant submitted that it had a special interest sufficient to maintain standing for the following reasons: 

  • it voiced the interest of the Surfers Paradise business community; 
  • it had pursued submissions and representations opposing the sale; and 
  • it had actively pursued the interests of its members and supporting organisations.

The Court agreed with the Applicant's argument that the sale of the car park would result in a reduction of available and convenient parking for local residents and businesses, and that the proposed re-development would result in only 640 publicly available car spaces and 100 spaces for clubs, community groups and volunteers.

Court held that the Applicant did not demonstrate that it possessed a special interest greater than the ordinary public

Although the Court agreed with the Applicant about the loss of car spaces, it held that the Applicant did not satisfy the requisite special interest required for standing. The Court noted as follows: 

(a) the Applicant did not own any property which would be adversely affected by the decision made by the Council; 

(b) the Applicant did not have an interest of its own, but instead had an indirect interest due to the interests of some of its members; and 

(c) that there was no evidence to suggest that all members of the Applicant displayed a special interest, as some only have an emotional or intellectual interest in the retention of public car parking. 

Further, the Court noted that the Applicant did not sufficiently demonstrate that it was a "peak" organisation recognised by the Council, because the Court observed that "peak" organisation status is not obtained by merely gaining a public profile from attempts to overturn the decision of the Council and being invited to Council workshops regarding the re-development. 

The Court held that even though the decision by the Council will impact on the availability of public car parking spaces in Surfers Paradise, therefore affecting the commercial interests of some of the members of the Applicant, the Applicant as an entity did not have a sufficient special interest which founded an entitlement to enforce public rights or duties. The Court also decided that the Applicant would not gain a benefit or advantage greater than the benefit or advantage conferred upon an ordinary member of the public if it was successful. 

Therefore, the Court held that the Applicant did not possess the requisite standing and dismissed the originating process.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2024.

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