DELIVERED AT: Brisbane HEARING DATE: 24 November 2009

JUDGE: Fryberg J

ORDERS: 1. Declare that the decision of the First Respondent on 26

October 2009 pursuant to section 3.6.5 of the Integrated Planning Act 1997 to call in the Applicant's development application to the Second Respondent dated 11 December 2007 for a development permit for material change of use for a "Homemaker Centre" on land located at Holts Road and Mackay-Bucasia Road, Richmond in the State of Queensland on land more particularly described as Lot 1 on SP141690, Lot 2 on RP 897382, Lot 4 on SP118647, Lot 1 on SP118647,

Lot 3 on SP111688 and Lot 2 on SP138968 is unlawful and of no effect.

2. Order that the First Respondent pay the Applicant's and second Respondent's costs of and incidental to the application to be assessed.

CATCHWORDS: Administrative law - Judicial review - Grounds of review - Procedural fairness - Hearing - Notice to persons affected -

Necessity - Ministerial decision to call in development application

Environment and planning - Environmental planning - Development control - Applications - Consent authorities - Determination of application by Minister or State Authority - Ministerial power to "call in" for determination - Scope of power - Procedural fairness

Integrated Planning Act 1989 (Qld), s 2.3.1, s 3.6.5, s 3.6.6,

Annetts v McCann (1990) 170 CLR 596, [1990] HCA 57,

Grollo Australia Pty Ltd v Minister for Planning [1993] VicRp 45; [1993] 1 VR 627, cited

Kioa v West (1985) 159 CLR 550, [1985] HCA 81, cited

Medway v Minister for Planning (1993) 30 NSWLR 646, considered

Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6, considered

COUNSEL: Applicant: G Thompson and M Plunkett

First respondent: P Freeburn SC and K Mellifont Second respondent: C Hughes SC and S McLeod

SOLICITORS: Applicant: MacDonnells Law

First respondent: Crown Law

Second respondent: McCullough Robertson

HIS HONOUR: In December 2007 the applicant, Landel Pty Ltd, which I shall describe simply by its first name, lodged a development application with the Mackay Regional Council, the second respondent, for approval for a development by way of material change of use to enable land to be used for retail showrooms and other retail applications.

In due course the application, which was impact assessable, was advertised and a company called W A Stockwell Pty Ltd made

a submission to the Council objecting to the granting of

approval. The Council referred the application to the Department of Main Roads as a referral agency, and that agency responded, in effect, that it had no objection to the application although it had some concerns.

In due course the matter was considered by the Council, and a decision notice was issued in July 2009. That notice was subsequently varied and a negotiated decision notice was issued to Landel in September this year. On the 8th of October Stockwell and another submitter, Lend Lease Real Estate Investments Limited, filed submitter appeals in the Planning and Environment Court.

In the meantime Stockwell had been active in another direction. It wrote to the Minister for Infrastructure and Planning on two occasions. The first was on the 11th of June this year, and the second on the 8th of July this year. It urged the Minister to exercise his power under section 3.6.5 of the Integrated Planning Act 1997 to call in the application and urged that the application should be refused.

The Minister took departmental advice. The advice was that he should not exercise that power. He also consulted with the Council through his departmental officers, who informed the Council that they would be recommending in the sense to which

I have just referred. He did not inform Landel of the fact

that he was considering exercising the statutory power nor was Landel informed of the letters written by Stockwell.

On the 26th of October the Minister, who is the first respondent in these proceedings, decided to exercise the statutory power and call in the application to be assessed. He issued the notice to the Council mandated by section 3.6.6, on the last day upon which he had power to do so under section 3.6.5(b) of IPA. Until it became aware of that notice Landel had no knowledge of any possible consideration of such a step.

Landel now seeks a declaration that the Minister's decision to call in the application was null and void and of no effect because the call in was made in breach of the rules of procedural fairness. The terms of the application were in fact much wider than that, but for reasons of its own Landel has decided to limit the application to that one ground. The question of whether Landel was denied procedural fairness

in such a way as to entitle it to a declaration potentially

gives rise to a number of issues. Some are issues of fact, however there has been no dispute about the factual matters before me, and the issues of law have also been narrowed.

For the Minister, Mr Freeburn SC has conceded that if there is under the Act a requirement for the Minister to afford procedural fairness to Landel in making his decision to call in the application, then that duty has been breached. Implicit in that concession is the notion that Landel had an appropriate interest sufficient to warrant the existence of such a duty, but of course, there was no concession as to the existence of a duty. The central and only issue was identified on behalf of the Minister as being one of determining solely whether the rules of procedural fairness apply in the circumstances of the case and having regard to the terms of relevant legislation.

The statutory provisions in question are set out in Division 2 of Part 6 of Chapter 3 of IPA, and that division can be seen to deal comprehensively with the topic of Ministerial calling. Section 3.6.5 identifies when a development application may be called in. The first condition for calling in is that it may occur only if the development involves a State interest.

State interest is defined in the dictionary to the Act to

mean, so far as is relevant in the present case, an interest that, in the Minister's opinion, affects an economic or environmental interest of the State or a region. The second condition for calling in an application relates to the time at which it may be called in. Essentially that begins when the application is made and ends relevantly 10 business days after the end of the submitter's and applicant's appeal periods. When the Minister calls in an application he is required under section 3.6.6, if the application had not been decided by the assessment manager, to assess and decide it, and in the

alternative, to reassess and redecide it in place of the assessment manager. In the latter case the effect of the call in is found under section 3.6.7(1)(c), which provides that the IDAS process starts again from the point in the IDAS process the Minister decides, being a point before the start of the decision stage.

The calling in is done by a notice which must state the point of the process from which the process must restart, and must give reasons for calling in the application. The effect of the call in is that the Minister becomes the assessment manager from the time the application is called in, and the Minister's decision on the application is taken to be the original assessment manager's decision: see section 3.6.7(1)(e). However a person may not appeal against the Minister's decision, and if an appeal was made before the application was called in the appeal is of no further effect. It can be seen, therefore, that the calling in has an impact not only on the applicant, in circumstances such as the present where an approval already given is, in effect, removed, but also on the two submitters who had lodged appeals. Their appeals ceased to have any effect.

One might imagine that Lend Lease, for example, might be somewhat aggrieved at that outcome if the Minister should subsequently decide to approve the application. Certainly Landel was aggrieved. It has taken the view that it now is in

a substantially worse position than it was prior to the call

in notice.

It is now settled that, to quote the words of Annetts v McCann (1990) 170 CLR 596 at page 598, "... when a statute confers upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment. ... In Tanos, Dixon CJ, and Webb J said (at p 396) that an intention on the part of the legislature to exclude the rules of natural justice was not to be assumed nor spelled out from 'indirect references, uncertain inferences or equivocal considerations.' Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice ...". Their Honours then referred to dicta of Mason J and Deane J in two of the cases, however I will not take the time to cite those dicta now.

Mr Freeburn on behalf of the Minister accepted that it was necessary in the present case to find a basis for excluding the right to procedural fairness rather than to seek to imply the right as a positive outcome either from the terms of the Act or the circumstances of the case. There are some circumstances upon which the applicant relies to reinforce the prima facie position. They include the fact that the Department had made recommendation against call in; the fact that the usual practice of briefing third party consultants to recommend for or against call in was not followed; the fact that ex parte submissions from a competitor had been received and were taken into account; and the fact that there were a number of issues upon which Landel could usefully have made

submissions to the Minister, being matters which were referred to in the various minutes provided to the Minister by departmental officers.

As Mr Freeburn pointed out there were, in effect, two levels of decisions made by the Minister. The first was the formation of an opinion that the application did involve a matter of State interest; the second, the exercise of the discretion to call it in. Landel submitted that it could hopefully have made submissions on both aspects had it been the afforded opportunity to do so.

It is in my judgment appropriate to have regard to the effect that the decision has on Landel. It is possible to overstate such effect. It is true that Landel had an approval from the Council which was effectively quashed by the decision. However it was an approval which was yet to take effect. Moreover, it was a contingent approval. It would take effect only if Landel succeeded in proving to the Land and Environment Court that the application should be granted.

Mr Freeburn submitted that Landel had not been deprived

of any substantive right, but that the call in decision had simply effected a change in the identity of the decision-maker for the future. Instead of having to prove its case to the Court, Landel was now in a position to prove its case to the Minister. That seems to me, to understate the position. Landel had a right which had been achieved by the

Council's exercise of its statutory power. Certainly it was

subject to being defeated if the Council were unsuccessful in

the Planning and Environment Court, and Landel carried the onus in that court. Nonetheless Landel was, in my judgment, in a more favourable position than it would be in a proceeding to try to persuade the Minister acting as the assessment manager to grant the application .

The question whether one can discern from the statute an intention that there should be no right of procedural fairness was addressed in a variety of ways. Mr Freeburn pointed out that IPA is not an act which should be assumed to deal only with approval of development applications by local authorities and other assessment managers. It deals with regional and State planning issues. He pointed to the fact that IPA does on occasions indicate the procedural fairness which is to be afforded to applicants, citing section 2.3.1 as well as the numerous provisions dealing with applications and notices under Chapter 3. I have already referred to the relevance of such citation in the quotation from Annetts to which I quoted earlier, but I note that section 2.3.1 occurs in a context which does not deal with individual rights; this is another ground for distinction.

Mr Freeburn also drew attention to the fact that the issues to be considered, that is the question of whether a matter of State interest was involved and whether there should be a call in, were discretionary matters, and in the former case,

dependent upon the Minister's opinion. Those qualities, he submitted, did not sit comfortably with any need to call for submissions.

I do not think that submission is correct. It is true that in forming his opinion the Minister may take matters of public or State interest into account and that such considerations are apt to involve political considerations (although I interpolate that there is no suggestion that that has been involved in the present case). However I see no reason why those matters should give rise to an inference that a right to procedural fairness was to be excluded.

Mr Freeburn sought to reinforce that submission by reference to the decision of the Supreme Court of New South Wales in Medway v Minister for Planning (1993) 30 NSWLR 646. The legislation there under challenge permitted the Minister to make a determination in relation to not only a particular development application, but also to a class of development applications.

The case itself was in the latter category. It is clear that the decision which was delivered by Justice Mahoney depended upon that fact. It also was influenced by the use of the expression "expedient in the public interest". Considerations of expedience are not specifically adverted to in IPA as far as the Minister's call in power is concerned, but perhaps, at least in so far as one is considering whether a State interest is concerned, there may not be much distinction to be drawn. What does matter, I think, is that the decision was heavily dependent upon the fact that the case concerned a decision on a class of cases. I will not quote from the judgment in view of the lateness of the hour.

I accept the analysis of that decision given by Chief Justice Spigelman in Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6, especially at paragraph 63 and following, and I have had regard to the other passages in that decision setting out the approach which should be taken these days.

Mr Freeburn also relied on the decision of Justice Brooking in Grollo Australia Pty Ltd v Minister for Planning [1993] VicRp 45; [1993] 1 VR 627. It seems to me that that decision does not assist in the present case, it was based on very different legislation and the reasoning cannot be extended to the legislation now under consideration.

Mr Freeburn made the point that IPA is a comprehensive and detailed code on development applications so that if Parliament had intended procedural fairness to apply there would be express provision for it in the Act. Such an approach is really inconsistent with the approach mandated by the High Court decisions to which I have referred, and I would add to those references the decision in Kioa v West [1985] HCA 81; (1985) 159 CLR 550.

There is some force I think in Mr Freeburn's point that the Act requires the Minister to prepare a report which must be tabled in the Legislative Assembly. That is another indication that the considerations which may affect the decision may include political considerations. However that does not exclude the possibility that submissions of a political nature as well as of a town planning nature might be made to the Minister by Landel. When one looks at the reasons which were advanced by Stockland in its letters urging the

Minister to call in the application one can see that there are a number of issues about which Landel could usefully have made submissions.

In my judgment while that is a factor of some support for Mr Freeburn's position it is by no means definitive of the

answer. I do not think the fact that imprecise criteria and value judgments may sometimes be involved is determinative in the present application since the issues in this case were not of that sort. I have already referred to Mr Freeburn's final submission, which is that no substantive rights of Landel were affected by the decision to call in the application.

On behalf of the Council Mr Hughes referred to a number of statutory provisions which suggested that, in his submission, the right to procedural fairness was not negated. In particular, he referred to section 3.6.5 applying the power to individual applications only, to section 3.6.6(2)(b) requiring reasons to be given, to other parts of sections 3.6.6 and

3.6.7 rendering the existing approval nugatory and precluding

any appeal from the decision of the Minister and terminating the effect of any appeal which was in train.

Those provisions do, I think, provide some support, though it is not particularly strong, for the view that the statute intended to preserve rather than exclude rights to procedural fairness.

In the end I think it comes down to the question whether there is enough in the Act to determine that in circumstances such

as the present the right to be heard, to make representations to the Minister and to be told of what is advanced in support of the proposed decision should be excluded. I do not think that has been demonstrated.

There is such a right, the Minister should have afforded Landel the opportunity. He admittedly did not do so and it is appropriate for this Court to make the declaration sought in paragraph 1 of the application.

HIS HONOUR: The remaining question is whether the unsuccessful Minister should pay the costs of the Council.

Mr Hughes for the Council rightly points out that the Council

was a necessary party and that it was able to make a positive contribution by putting information before the Court by way of affidavit which was not otherwise known to the applicant.

It also seems to me that I was assisted by having positive submissions made by counsel experienced in this area and that it was appropriate for them to be here. The first respondent should pay the costs of the second respondent as well as those of the applicant. I will amend the draft accordingly.

With that amendment there'll be an order in accordance with the draft initialled by me and placed with the papers.