Decision not to include a Key Resource Area in the State Planning Policy held to be a decision that cannot be subject to judicial review under the Judicial Review Act 1991

In brief

The case of Maroochydore Sands Pty Ltd v Minister for State Development, Manufacturing, Infrastructure and Planning [2019] QSC 319 concerned an application to the Supreme Court of Queensland (Court) for a judicial review under the Judicial Review Act 1991 (JRA) of the Respondent Minister's decision not to identify an area of land as a Key Resource Area (KRA) in the relevant version of the State Planning Policy (SPP).

The Applicant had applied to the relevant Department seeking that part of a site of a proposed development for commercial sand extraction, wet screening and wash operation (Land) be included into the SPP guidance material and Interactive Mapping System (IMS) as proposed KRA 162 Eudlo Creek (KRA 162).

The Respondent Minister's decision on 16 May 2017 was that KRA 162 was not to be included in the SPP guidance material or IMS (Decision).

The Court dismissed the application as the Decision was not a decision to which the JRA applied, because the guidance material and IMS were not part of the SPP and the bundle of rights and obligations attaching to the Land were not affected.

Respondent Minister argued that the Decision was not one subject to judicial review

The Respondent Minister alleged that the Decision was not one to which the JRA applied for the following reasons:

1. The JRA applies to decisions to amend the SPP under section 10 of the Planning Act 2016 (Planning Act); however, the Decision was not a decision for the purpose of section 10 of the Planning Act.

2. A decision to amend the SPP must be undertaken in accordance with certain initial steps, which were not undertaken.

3. The failure to include KRA 162 in the SPP guidance material and IMS did not affect the bundle of rights and obligations affecting the Land.

The Court considered the first and third reasons.

Court found that the guidance material and supporting mapping were not part of the SPP for the purpose of amendments to the SPP under the Planning Act

The Respondent Minister may make or amend a State planning instrument in accordance with the process stated in section 10 of the Planning Act. A State planning instrument includes the SPP (section 8(2) of the Planning Act).

The relevant version of the SPP stated that a KRA was an area that contained extractive resources of State or regional significance shown on the IMS. The IMS was referred to as being in the nature of supporting material which may be amended from time to time, independently of an amendment to the SPP.

In addition, the relevant guidance material which supported the IMS and provided a list of the KRA areas had no statutory basis.

The Respondent Minister stated that as the IMS and SPP guidance material were supporting material to the SPP they were not part of the SPP, and therefore were not the subject of the amendment process stated in section 10 of the Planning Act.

The Court agreed and concluded that "...the process of including information in the IMS does not involve an amendment to the SPP of the type required by [section] 10(5) of the Planning Act" (at [18]).

Court found that the bundle of rights and obligations affecting the land the subject of the proposed KRA 162 would not have changed had the Decision been to include the KRA 162 in the SPP

The Respondent Minister submitted that a decision in relation to the inclusion of KRA 162 in the SPP would not affect the bundle of rights and obligations in the sense discussed in Griffith University v Tang (2005) 221 CLR 99.

The Court noted the Respondent Minister's reliance on the Court's judgment in Trask Development Corporation No 2 Pty Ltd v Moreton Bay Regional Council [2018] QSC 170 in which the Court determined that a refusal of a request to include an area on an environmental overlay map was not a decision to which the JRA applied because it did not affect the relevant developer's rights (see [22]).

The Court held that the substantive right of the Applicant to seek the inclusion of KRA 162 into the SPP guidance material and IMS was not exhausted as the Applicant may request its inclusion again. Further, the Court held that even if the Decision was to include the KRA 162 into the SPP, such a decision would not necessarily determine the Applicant's right to exploit the resources on the land as a development application would be required.

Therefore, the Court held that the Decision was not one from which new rights or obligations arose and did not affect the Applicant's bundle of rights and obligations over the Land.

Conclusion

The Court dismissed the application for judicial review under section 48 of the JRA as the Decision was not a decision to which the JRA applied, because the Decision:

• did not concern the amendment of the SPP for the purpose of the Planning Act as the Decision related to guidance material and the supporting mapping; and

• did not affect the bundle of rights and obligations affecting the land the subject of the proposed KRA 162.