In brief

The case of Genamson Holdings Pty Ltd v Moreton Bay Regional Council & Anor [2020] QSC 84 concerned an application to the Supreme Court of Queensland (Court) for declarations in respect of the proposed resumption (Proposed Resumption) for flood mitigation purposes of part of the applicant's land (Resumption Land) by the Moreton Bay Regional Council (Council).

The declarations sought were as follows:

  1. Under section 10 of the Civil Proceedings Act 2011 (CPA) or section 30(1)(c) of the Judicial Review Act 1991 – a declaration that the decision of the Council to apply (Resumption Application) to the Minister for Natural Resources, Mines and Energy (Minister) for the Proposed Resumption is void and of no effect, because of the Council's failure to take into account a material consideration in respect of the Proposed Resumption.

  2. Under section 10 of the CPA – because the Resumption Application involved jurisdictional error resulting from the Council's failure to take into account a material consideration in respect of the Proposed Resumption:

    1. a declaration that the Resumption Application is void and of no effect.

    2. a declaration that the Proposed Resumption is discontinued.

The Minister agreed to abide by the ruling of the Court and put the consideration of the Resumption Application on hold pending the determination of the proceeding.

The Court observed that legislation which takes away private rights and interests in respect of land ought to be strictly construed. The Council did not take into account an expert report it was required to consider in deciding to make the Resumption Application, and the Resumption Application was not properly made as it did not include all of the objections to the Proposed Resumption.

The Court declared the decision of the Council to make the Resumption Application and the Resumption Application itself void and of no effect, and discontinued the Proposed Resumption, which in any event had passed the relevant time period in the ALA.

Background

The Council, in its role as a constructing authority under the Acquisition of Land Act 1967 (ALA), gave the applicant a notice of intention to resume (First NIR) the Resumption Land, which is located at Caboolture and is improved with a shopping centre.

The applicant, in accordance with section 8(1) of the ALA, objected to the First NIR and asked to be heard by the Council. The Council appointed a delegate (Delegate) to conduct the hearing, and was therefore required by section 8(2)(b) of the ALA to consider a report prepared by the Delegate in the Council's consideration of the Proposed Resumption.

The Council, after considering the Delegate's report, issued an amended NIR (Second NIR).

The applicant objected to the Second NIR and was again heard by the Delegate who produced a second report (Second Report).

Delegate's reference to an expert report made it a material consideration 

An expert report of an engineer, which considered the suitability of the Resumption Land for flood mitigation purposes, was before the Delegate at the time of the second objection hearing (Expert Report).

The Delegate in his Second Report referred to the Expert Report and inter alia stated "the Council should give due consideration to the report…when it formulates its opinion as to how it intends to proceed". However, it was agreed between the parties that the Expert Report was not considered at the meeting in which the Council resolved to make the Resumption Application.

The Court noted that the Council was required by section 8(2)(b) of the ALA to take the Expert Report into account; but that the weight to be attributed to the Expert Report was a matter for the Council.

The Court held that the Council's decision to make the Resumption Application was void and of no effect, or ought to be set aside, on the grounds that the Council failed to take into account the Expert Report.

Council's failure to provide "every objection" to the Minister resulted in a deficient application being made

Section 9(3) of the ALA states the material that the Council is required to provide to the Minister in making the Resumption Application. Section 9(5) of the ALA states that the Minister is required to consider the material provided by the Council to relevantly ensure that the Resumption Land could and should be taken for its stated flood mitigation purpose, and that the Council took reasonable steps to comply with section 7 and section 8 of the ALA.

The Resumption Application did not include copies of the applicant's objections to the First NIR and Second NIR or the reports of the Delegate, and the form given to the Minister to make the Resumption Application recorded in error that no objection had been received by the Council.

The Council emailed the applicant's objection to the First NIR and the Delegate's reports to the Minister, some 12 months after the First NIR was issued to the applicant.

It was agreed between the parties that the Minister had never received a copy of the applicant's objection to the Second NIR, and the Court therefore held that the Resumption Application was not an application within the meaning of section 9 of the ALA because "every objection" had not been provided.

The Court rejected the Council's submission that the ALA contemplates non-compliance with the requirement for every objection to accompany an application at the time it was lodged. The Court considered that it would be nonsensical to allow for the provision of material relevant to the Minister's determination of an application for resumption at any period, which could result in a decision of the Minister being based on inadequate or incomplete information.

The Court also observed that if the Minister is not provided with every objection, the Minister is hindered from performing the responsibility of ensuring that the constructing authority has complied with sections 7 and 8 of the ALA, as is required by section 9(5) of the ALA.

The language of the ALA was held to be mandatory, despite section 9(4) of the ALA stating that the Minister may request further information, and the Court held that upon the expiration of 12 months from the First NIR being given to the applicant on 12 October 2017, section 7(4B) of the ALA operated so as to deem the discontinuance of the First NIR.

Conclusion 

The Court held that the non-compliance with the process for resumption in the ALA resulted in the Resumption Application not being an application for the purposes of section 9 of the ALA. The Court therefore, under section 10 of the CPA, declared void the Council's decisions in respect of the Resumption Application, and in accord with the expiration of the 12 month period stated in section 7(4B) and section 9(2) of the ALA, made a declaration that the Proposed Resumption was deemed to be discontinued.

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 2020.

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