In brief

The case of Hamelech Basodeh Pty Ltd v Gold Coast City Council & Anor [2022] QSC 57 concerned an application to the Supreme Court of Queensland (Court) by a landowner (Applicant) under section 43 (Application for review) of the Judicial Review Act 1991 (Qld) and section 10 (Declaratory order) of the Civil Proceedings Act 2011 (Qld) seeking declarations in respect of the decision of the Council of the City of Gold Coast (Council) to apply (Resumption Application) under section 9 (Ways in which land is to be taken) of the Acquisition of Land Act 1967 (Qld) (ALA) to the Minister for Resources (Minister) to take for the protection of koala habitat the Applicant's land located at Pimpama, Queensland (Subject Land).

The grounds upon which the Applicant sought the declarations were as follows:

  • Procedural Fairness Ground 1 – The Applicant was not afforded procedural fairness at an objection hearing in respect of the proposed taking of the Subject Land because the Applicant was not given notice of alternative proposals stated in the Council's delegate's objection report (Objection Report) nor the opportunity to respond to those proposals at the objection hearing.

  • Procedural Fairness Ground 2 – The Applicant was not afforded procedural fairness at the objection hearing because the Applicant was not given the opportunity to respond to the reliance by the Council's delegate on a report commissioned by the Applicant in 2014 in relation to the Subject Land being within a key resource area (Key Resource Area Report).

  • Invalid Delegation Ground – The Council did not validly delegate to the chief executive officer its powers in respect of conducting the objection hearing and producing the Objection Report because the resolution of the Council purporting to delegate the powers (Delegation Decision) did not comply with the now repealed section 258 (Notice of meetings) and section 277 (Public notice of meetings) of the Local Government Regulation 2012 (Qld) (LGR).

Whilst the Court did not find for the Applicant in respect of Procedural Fairness Ground 2 and the Invalid Delegation Ground, the Court declared void and of no effect the Resumption Application on the basis of Procedural Fairness Ground 1.

Background

The Council, as a constructing authority under the ALA, gave the Applicant under section 7(1) (Notice of intention to take land) of the ALA a notice of intention to resume the Subject Land for "…the conservation of koalas on land in a Regional Landscape and Rural Production Area".

Under sections 7(3)(d) and 7(3)(e) of the ALA, the Applicant served a notice on the Council, which relevantly stated the following grounds of objection to the Council's taking of the Subject Land and sought that the Applicant be heard at an objections hearing in respect of the grounds for objection:

  • Taking the Subject Land was inconsistent with Council's obligations to act in accordance with the local government principles under section 4(2)(a) (Local government principles underpin this Act) and section 4(2)(d) of the Local Government Act 2009 (Qld) because the Council had not identified that the taking of the Subject Land was value for money nor had it considered viable alternatives to secure koala conservation land.

  • Taking the Subject Land for the conservation of koalas was inconsistent with the requirements in the State Planning Policy (SPP) to protect a key resource area and avoid new sensitive land and incompatible uses, and an alternative "koala land proposal" of the Applicant would comply with the requirements in the SPP.

The Applicant attended the objections hearing which was attended by a local government officer at which the Applicant raised an issue as to whether the local government officer held a delegation to hear the objection. The objections hearing was adjourned and the Council then made the Delegation Decision giving the officer the apparent delegation and the delegate recommenced the objections hearing and, in accordance with section 8(2)(b) (Dealing with objections) of the ALA, wrote the Objection Report.

The delegate invited the Applicant to correct any factual inaccuracies in a draft of the Objection Report, and the Applicant's response identified matters that had not previously been raised with the Applicant, which relevantly included the matters the subject of Procedural Fairness Ground 1 and Procedural Fairness Ground 2, and requested that the Applicant be heard on those matters.

The final Objection Report was delivered to the Council and the Council was of the opinion that the Subject Land was required to be taken for the protection of koala habitat and accordingly, made the Resumption Application. The Minister had not yet determined the Resumption Application at the time the Applicant commenced the application for review.

Procedural fairness principles

In considering Procedural Fairness Ground 1 and Procedural Fairness Ground 2, the Court relevantly had regard to the following well-established common law principles:

  • The burden on an applicant alleging that the rules of natural justice have been breached is to prove, on the balance of probabilities, that a different decision could have been made had procedural fairness been afforded (see [44] and [47]).

  • An opportunity to be heard ordinarily requires a person to be informed of the relevant issues and the nature and content of adverse material, and entitles the person to make submissions supporting their interests, which includes the right to provide information and make submissions in respect of adverse material before a decision-maker (see [51] and [52]).

  • A decision-maker is required to identify any critical issue to the decision which is not apparent from the nature of the terms of the relevant statute and of any adverse conclusion which would not obviously be open on the material (at [52]).

  • The failure to afford a person whose interests are affected an opportunity to respond to material will not be a breach of procedural fairness, where the material was not taken into account by the decision-maker or could not affect the ultimate decision of the decision-maker (at [81]). 

  • The reasons of a decision-maker are not meant to be "…scrutinised upon over-zealous judicial review by seeking to discern [error]" (at [82]).

Procedural Fairness Ground 1 – Applicant entitled to be heard in respect of the alternatives considered by the Council and therefore denied procedural fairness

The Court considered the following in respect of Procedural Fairness Ground 1 (see [39] to [40]):

  1. Whether the construction of the ALA required the Applicant to be heard in respect of the alternative proposals such that a denial to be heard would result in a denial of procedural fairness.

  2. Whether the decision was affected by jurisdictional error in that the decision was made beyond the power conferred by the ALA, and where it was, whether the non-compliance was so material so as to nullify the decision. 

The Court held that the construction of the ALA permitted a person to advocate in favour of its grounds of objection to persuade a constructing authority to depart from its preliminary decision to acquire land, and required that the person be given the opportunity to deal with matters adverse to its interests, which relevantly included being informed of any issue which might be critical to the ultimate decision (see [49] to [53]). "Any breach of that obligation will render the decision beyond power if the applicant establishes that a different decision could have been made if there had been compliance" (at [53]).

The Court held that the Applicant was not afforded procedural fairness because the Council in accordance with its discretion elected to consider alternatives to the resumption of the Subject Land, and therefore was obliged to allow the Applicant to be heard on those alternatives (see [66] and [69]).

The denial of procedural fairness was material and therefore beyond jurisdiction because submissions by the Applicant in respect of the alternative proposals to resumption could have affected the ultimate result (see [73] to [74]).

Procedural Fairness Ground 2 – No material breach of the rules of natural justice because the Key Resource Area Report was not critical to the Council's ultimate decision 

The Key Resource Area Report was referred to in the Objection Report to the extent that it was "…consistent with Council's current zoning of the [Subject Land]", which supported that the key resource area in which the Subject Land is located is not practicable for future exploitation and was consistent with various town planning decisions demonstrated in the planning scheme and policies of the Council.

The reference in the Objection Report to the Key Resource Area Report simply observed the consistency between the report and the town planning decisions of the Council and was not the basis for the decision that the Subject Land was not suitable for future exploitation (see [83] and [84]). Accordingly, the Court held that if there was a breach of the rules of natural justice, the breach was not material (at [85]).

Invalid Delegation Ground – No statutory intention to invalidate a resolution where councillors participated notwithstanding non-compliance with statutory notice requirements

It was agreed between the parties that the notice which enclosed the agenda for the Council meeting at which the Delegation Decision was made was given to the Councillors the day before the meeting.

The Court relevantly held as follows in respect of the Delegation Decision (see [97] to [104]):

  • The Council meeting was a "special meeting" under section 258 of the LGR as opposed to a "scheduled meeting" under section 277 of the LGR, which required that the notice be given "at least 2 days before the day of the meeting unless it is impracticable to give the notice" (emphasis added).

  • An executive decision made contrary to statute is not void unless there is a legislative intention that the decision will be invalidated where there is non-compliance with the statutory process, which requires a consideration of the proper construction of the statute and an assessment of the degree of departure.

  • The notice requirements in section 258 of the LGR were designed to ensure that councillors have proper notification of the matters to be discussed at a special meeting and the opportunity to participate in the meeting, and there is no statutory intention to invalidate such decision where councillors do participate and unanimously make a resolution.

  • The Delegation Decision is valid because the Councillors participated in the meeting despite the short notice of the agenda for the meeting and unanimously resolved to make the Delegation Decision. 

Conclusion 

The Court declared void and of no effect the Resumption Application on the basis that the Applicant was not afforded procedural fairness in respect of the alternative proposals to resumption considered by the Council's delegate.

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 2022.

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