Massie & Ors v Brisbane City Council [2007] QCA 159

SUPREME COURT OF QUEENSLAND

CITATION: Massie & Ors v Brisbane City Council [2007] QCA 159

PARTIES: RAYMOND HENRY EDWARD MASSIE AND PAULA ELIZABETH MCLUCAS / (first applicant) / NADRA INVESTMENTS PTY LTD ACN 010 090 749 / (second applicant) / v / BRISBANE CITY COUNCIL / (respondent)

FILE NO/S: Appeal No 833 of 2007 / P & E Appeal No 1765 of 2006

DIVISION: Court of Appeal

PROCEEDING: Application for Leave Integrated Planning Act

ORIGINATING COURT: Planning and Environment Court at Brisbane

DELIVERED ON: 18 May 2007

DELIVERED AT: Brisbane

HEARING DATE: 18 April 2007

JUDGES: Jerrard and Keane JJA and Lyons J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: 1. Application dismissed / 2. Applicants to pay the respondent’s costs on the standard basis

CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – UNREASONABLENESS – whether the test in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 is the correct test to apply in the circumstances / ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – GENERALLY – where certain land was prone to flooding – where the Council changed the classification of land from Emerging Community to Environmental Protection under the City Plan 2000 – whether the decision of the Council to change the classification was reasonable in the circumstances / Integrated Planning Act 1997 (Qld), s 2.1.3, s 2.1.3A, s 4.1.21 / Statutory Instruments Act 1992 (Qld) / Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, distinguished / Lainson v Sutherland Shire Council (1998) 108 LGERA 1, applied / Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1987) 162 CLR 24, distinguished / Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd & Ors (1996) 91 LGERA 31, applied

COUNSEL: G Allan for the applicants / M Hinson SC for the respondent

SOLICITORS: Cervetto Courtice for the applicants / Brisbane City Legal Practice for the respondent

JERRARD JA: This matter is an application for leave to appeal from a decision of the Planning and Environment Court (“the PEC”) delivered on 15 December 2006. By that decision the PEC dismissed an amended application filed on 27 November 2006 in which the applicants asked the PEC for declarations under s 4.1.21 of the Integrated Planning Act 1997 (Qld) (“the Act”). Those were that two resolutions of the respondent Council were in breach of the Act, ultra vires, and invalid. The effect of those two resolutions was to amend the Brisbane City planning scheme City Plan 2000, by reclassifying properties owned by the applicants from Emerging Community to Environmental Protection.

An appeal from the PEC lies to this Court only with its leave, and, relevantly, only on the ground of error or mistake in the law by the PEC. The applicants argue that the learned judge who constituted the PEC failed to give adequate reasons for dismissing their applications, and so erred in law. They also argue that the learned judge had erred in law in not finding that the two impugned resolutions of the Council were manifestly unreasonable, and a misuse of the powers given to the respondent by the Act.

The issues

The essence of the applicants’ argument was that there was simply no reason at all for the respondent to change the classification of their land, because the lawful objects the Council could pursue in reclassifying that land were already achievable under the existing classification. Accordingly, to change the classification was unreasonable, and done for other than the legitimate reasons provided for in the Act. The fact it was done solely for flood mitigation reasons was an improper use of the power of reclassification.¹

City Plan 2000 is a planning scheme made under Chapter 2 of the Act. That Chapter provides that the process described in Schedule 1 of the Act must be followed for making or amending a planning scheme; it is common ground that at all times the Council followed and applied the stated process. Planning schemes made under the Act are statutory instruments under the Statutory Instruments Act 1992 (Qld) and have the force of law;² as Mr Hinson SC put it for the respondent, a planning scheme has the character of a legislative instrument. Section 2.1.3A of the Act provides that “land use and development”, and “valuable features”, are two of three “core matters” for the preparation of a planning scheme. That section further defines “land use and development” to include the effects of land use and development, and development constraints (including, but not limited to, population and demographic impacts). It defines “valuable features” to include water catchments or recharge areas. Section 2.1.3 requires that a local government be satisfied that its planning scheme co-ordinates and integrates, inter alia, core matters and identifies the desired environmental outcomes for the planning scheme area. The Act therefore requires that a local government making (or amending) a planning scheme be satisfied it co-ordinates and integrates core matters dealt with, such as the effects of land use and development, development constraints, and water catchments and recharge areas. That satisfaction is a necessary feature of the planning schemes provided for by the Act.

Mr Hinson SC argued that the respondent Council’s reason for changing the applicants’ land classification area was to co-ordinate and integrate those core matters. All parties accept that the effect of local flooding was behind the changes to the classification, but the applicants argue the change was unnecessary, and that the respondent simply chose a process least expensive to itself, and did not consider other available solutions. Put in the terms of the Act, the applicants’ argument is that the respondent ought to have been satisfied the unamended planning scheme (the original land classification) co-ordinated and integrated those core matters dealt with, and the Council could not reasonably have been satisfied a change in classification was required to do that.

The land

The applicants’ properties were two of 21 properties affected by the change of area classification. Their affected properties are Lot 253 on CPS 3138 and Lot 2 on RP 71838, County of Stanley, Parish of Kedron. Lot 253 is owned by Paula McLucas and Raymond Massie, and is No 19 Muller Road, Boondall; Nadra Investments Pty Ltd owns Lot 2, located at 61 Muller Road, Boondall. Nadra Investments owns other land (Lot 1 on RP 71838, No 65 Muller Road, and not the subject of the appeal). Number 19 Muller Road is 4.05 hectares, and Lot 2, No 61, is 3.088 hectares. Paula McLucas, now 57, deposed in a statutory declaration to having lived for most of her life at either No 19 or No 65 Muller Road. Her brother Raymond Massie also deposed to having lived most of his life at either No 19 (where he now lives) or No 65 Muller Road; No 19 (Lot 253) was acquired by the family in 1942, and Lots 1 and 2 (61 and 65) were bought between 1942 and 1955. Both Raymond Massie and Paula McLucas described extensive local knowledge of the area and considerable experience of it in times of storm and flood.

Their land the subject of this application is adjoining, and both blocks front on to Muller Road, Boondall. Groth Road runs parallel to Muller Road, to the east; and both those roads join Zillmere Road, which runs generally in an east-west direction. Zillmere Road in turn joins Sandgate Road to the east in a “T” intersection, and Sandgate Road, like Muller and Groth Roads, runs in a basically north-south direction. Numbers 65, 61, and 19 Muller Road are three adjoining blocks, forming a rectangle fronting Muller Road, and the rectangle has No 19 on its southern end and No 65 at the northern. To the west of Sandgate Road lie the Zillman waterholes, which are in part fed by Zillman Creek, which goes towards eastwards to those waterholes. The Creek course would pass to the south of No 19 and (by culvert) under Groth Road, then southward under Zillmere Road, and then eastwards under Sandgate Road. Just to the north of that water course, after it crosses under Groth Road, is a street, Parthenia Street, in which residential development has happened, and the residents of which complain of flooding.

Number 19 and number 65 Muller Road each have one residence built on them, but No 61 has none. Residential development has occurred on the western side of the land below No 19 and fronting Muller Road, and the Zillmere Creek watercourse would affect some of those properties. Opposite No 19, some residential development has occurred in the land fronting on to Groth Road. The land at No 61 and No 19 is therefore a large area, approximately eight hectares in size, not yet developed for residential use, other than the one house.

Flood mitigation considerations

The Association of Concerned Residents of Zillman Waterholes ( the “CROZWS”) was formed in 1994, after some homes in the area were inundated with water. The appeal record suggests the CROZWS has been active in pressing for flood mitigation work to be carried out, in areas adjacent to the Zillman Waterholes. A report prepared for the respondent Council in September 2004, the Nundah Creek Flood Study, described the Zillman Waterholes merging with Downfall Creek to become Nundah Creek, and that much (residential) development within the Nundah Creek catchments area has occurred at a time when development standards were different to current ones.³ It reported that the residences and business in the vicinity of the Zillman Waterholes have a long history of flooding problems, and that the local community has regularly lobbied local government to rectify flooding. It recorded complaints that during the 1992, 1994, and 1996 storm events the culvert crossings of Zillmere Road and Groth Road appeared to be blocked with debris, and that residents believed that poor maintenance of the waterway and local drainage paths were contributing to flood inundation. Some 10 flood mitigation options were considered in that report, which recommended the first option, namely replacing the existing culverts under the northbound carriageway crossing on Sandgate Road with a new, single span, bridge. This was predicted to reduce flood levels for a major event by about 0.5 of a metre immediately upstream of that northbound carriageway, but with little change to the flood levels upstream of the Muller Road crossing.

By 20 January 2005 a draft Proposed Zillman Waterhole Planning Strategy included, as part of all four options then put forward, reclassifying the majority of the relevant land from Emerging Community to Environmental Protection. Various other options were described in another report dated 8 February 2005, which discussed the possibilities of lowering ground levels at various stretches of the water course, or modifying culverts. Again the report authors concluded that upgrading the Sandgate Road culvert, despite its very high capital cost, would result in significant improvements to the flooding patterns of the area and was the most appropriate solution.

In a report by the Establishment and Co-Ordination Committee (“the Committee”) of the respondent, presented to the Council on 1 March 2005 and adopted, the Committee recommended and wrote:

“Detailed flood studies of the Zillman Waterholes Waterway Corridor have been carried out to assess the effects of developing the Emerging Community Area between Muller and Groth Roads, Boondall. This revealed that intensification of development would result in a loss of floodplain storage, which in turn would increase the flood levels in the existing residential area downstream.”

The applicants did not present any evidence challenging that opinion. The recommendation adopted by the Council on 1 March 2005⁴ was to change the area classification of the 21 separate sites, from Emerging Community Area to Environmental Protection Area, and relocate the Waterway Corridor boundary to the southern side of Parthenia Street. The authors of the report urged that that would protect valuable environmental features of the Zillman Waterhole and nearby areas, and clarify to landowners that the land was unsuitable for intensified residential development. The authors noted that:

“The current situation suggests that the land can be developed into a Residential Area because of the Emerging Community Area classification. However, development is actually constrained by the land being flood-prone.”

It goes on:

“Residents downstream near Parthenia Street, Boondall, have asked Council to reduce flood levels across their residential properties. This proposal is aimed at preventing a worsening of flooding from development within the floodplain. It will not result in a reduction in flood levels”.

A further report, the Zillman Waterholes Planning Study dated March 2005, was then prepared. That report recorded that the City Plan 2000 defined the Emerging Community Area (previously known as the Future Urban Zone) as land generally suitable for urban purposes at some future time. Chapter 34.1 of City Plan 2000 provides that:

“These areas have not been fully investigated and many contain pockets of land unsuitable for development because of scenic or environmental constraints. All land in this Area requires the preparation of a neighbourhood structural plan before development can occur. Desired environmental outcomes described in 4.2 of Chapter 3 of City Plan 2000 include protecting and enhancing, and incorporating into the overall development of the area, waterway corridors.”

That report also remarked that a July 2003 Strategy Paper had identified two planning aims for the Zillman Waterholes area, namely protecting the waterholes and planning for the Emerging Community Area between Muller and Groth Road, Boondall, and ways to manage flooding. It also reported that flood modelling found that “filling” of that part of the Emerging Community Area which flooded in the 100 ARI flood event would take away flood plain storage, and increase flood levels in the existing residential area downstream, and that “Water Resources” considered those impacts to be unacceptable.⁵ It referred to the significance of the association of the wetlands with the remanent region ecosystems on No 61 and No 19 Muller Road Boondall, which Council assertedly wished to protect and buffer;⁶ and to the option of purchasing the flood affected properties north of Parthenia Street. That option was not supported, because of the high financial cost to the Council, and the social and financial costs on the affected land owners who would be required to relocate.⁷

Although the March 2005 Zillman Waterholes Planning Study Report described the impact of filling portion of the Emerging Community Area as unacceptable, a report dated 12 August 2005, prepared for another property owner (of 80 Groth Road Boondall), by the Wolter Consulting Group, contended that it was well recognised that land could be filled as long as compensatory excavation works were provided which ensured that existing flood plain storage was maintained. That report remarked that much of the development occurring within the Gold Coast flood plain was based on that premise, with detailed hydraulic modelling being undertaken to confirm “zero” flood level flow, and timing impacts. That report proposed that developing the eastern portion of the site (at 80 Groth Road), while rehabilitating the western portion, with compensatory earthworks provided on the western portion, would not compromise existing flood storage if 50 per cent of the site was filled and with compensatory excavation on the western half.

The Council resolutions

On 21 March 2006 the Council met and resolved pursuant to s 16 of Schedule 1 of the Act to proceed with the proposed amendments to change the area classification of the 21 sites. That resolution is the first of the two challenged on this appeal. The Council was informed that reclassifying the flood affected properties to the Emerging Community Area, and relocating the waterway corridor boundary to the southern side of Parthenia Street, would help the Council protect valuable environmental features, ensure that the flood plain was not filled and therefore not increase downstream and upstream flood levels, and clarify that the land was unsuitable for intensified residential development. The Council was advised that intensification of development would result in a loss of flood plain storage (apparently in the subject sites), which in turn would increase the flood levels in the existing residential area downstream. The Appeal Record makes it clear that the proposal was described as aimed at preventing a worsening of flooding from development within the flood plain, and there was no suggestion it would result in a reduction of flood levels.

The material presented to the Council in March 2006 included a report (attachment “E”) on responses by the Council to objections or submissions on the proposed reclassification and relocation of the waterway. Those responses include the statement that the subject land is constrained from further development because it forms part of a flood plain. Regarding proposed compensatory excavation work, the Council’s response stated:

“The proposed filling would reduce the increment of available flood storage at the high level which is the design flood event level. Such a reduction would have adverse impacts on the flood level and could not be supported.”⁸

That observation was in response to the report by the Wolter Consulting Group, about No 80 Groth Road.

The responses also included the observation, helpful to the applicants, that development proposals in the Emerging Community Area must meet the requirements of the Structure Planning Code. One of the objects of that Code is to preserve environmental assets and ensure that development is of an intensity that is appropriate to the onsite and local development constraints. The environmental assets that the Council had investigated were the capacity of the land to accommodate flood waters, rather than the existence of remanent vegetation.

Regarding the Nundah Creek Flood Study, the Council response advised:

“While the Flood Study identified the upgrade of the Sandgate Road culvert as an option for flood mitigation the current modelling has demonstrated that filling the land will exacerbate flooding conditions downstream. The Flood Study modelling does not demonstrate that upgrading the Sandgate Road culvert will eliminate all flooding in the area, nor does it represent a strategy for offsetting the negative impacts resulting from filling the Emerging Community Area.”

The Council’s decision on 21 March 2006 was to adopt the proposed area classification changes, and relocation of the Waterway Corridor boundary, and the critical reasons stated were these:

“26. Detailed flood studies of the Zillman Waterholes Waterway Corridor were carried out to assess the effects of developing the Emerging Community Area between Muller and Groth Roads, Boondall. This revealed that intensification of development would result in a loss of floodplain storage, which in turn would increase the flood levels in the existing residential area downstream.

35. The current situation suggests that the land can be developed into a residential area because of the Emerging Community Area classification. However, development is actually constrained by the land being flood-prone. If Council approves the amendments, landowners have the right, within two years, to request that applications for development still be considered under the Emerging Community Area classification. If Council refuses this request, the landowners may claim compensation.

36. Residents downstream, near Parthenia Street, have asked Council to reduce flood levels across their residential properties. This proposal is aimed at preventing a worsening of flooding from development within the flood plain. It will not result in a reduction in flood levels.”

On 8 August 2006 the Council adopted those proposed amendments, repeating those reasons. That is the second resolution challenged by the appeal.

Report prepared by the applicants

In a report dated 18 May 2006 (prepared for the applicants), a Dr Johnson wrote that the modelling undertaken by the Council had not considered compensatory filling, that is, excavating soil material from part of the area which will remain undeveloped and thereby lowering the ground level, and using that material to fill the remainder of the area for development purposes. He assumed that 50 per cent of each undeveloped lot in the “precinct” was filled above the 100 year ARI level, and the remainder of each lot assumed to grade evenly from the edge of the fill to the existing top of the bank along Muller Creek. He considered that his modelling showed that flood levels upstream of Muller Road and downstream of Groth Road were decreased.

It seems common ground that the applicants’ land lies within a site which, if further developed for residential allotments without compensatory cutting and filling, will increase flooding downstream in the Zillmere Waterway. It also seems common ground that the State government would not agree to pay for the recommended upgrade to the northbound carriageway on Sandgate Road over that waterway. It is common ground that other residents downstream of the applicants’ land want the Council to take steps to improve flood mitigation; residential development of the applicants’ land without compensatory filling will increase flooding risks downstream. The proposals for cutting and filling the site suggested by Dr Johnson assumed that a number of different lots would be filled or excavated as part of an overall development or plan, and not as a result of individual applications for development approval. The majority of that site or “precinct” to which Dr Johnson had regard is owned by the applicants, but not the majority of the lots. The “precinct” Dr Johnson considered (at AR 200) fell within but did not match the site of the 21 re-classified lots (at AR 1036).

The applicants’ argument

The applicants argued that the change of classification was not necessary, and that there was no reason for it to occur, because the objects the Council had in mind could all be achieved under the existing classification. Any application for development approval of the applicants’ land under the Emerging Community Area classification would of necessity be assessed against the desired environmental outcomes for that classification, by reason of s 3.5.14(2) of the Act and s 2.5.2 of Chapter 3 of the City Plan 2000. That would require that the Council ensure that, in any decision made on the application for approval, the environmental values of the land were protected. Accordingly, changing the classification without reason was a step so manifestly unreasonable that it exceeded the power given to the respondent, for the reasons explained in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, and referred to by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1987) 162 CLR 24 at 40-42.

The applicants, although they obtained their report from Dr Johnson dated 18 May 2006, did not supply that report to the Council before its final decision in August 2006. The report by Dr Johnson does not contain any description of proposed cutting and filling limited to the applicants’ land, and instead it describes cutting and compensatory filling to a larger parcel which would include both the applicants’ land and other land not under the control of the applicants.⁹ The Court learned on the appeal that the applicants had obtained a proposal prepared by a Mr Goodwin in January 2006, dealing with proposed filling of part of their land and widening a storage drain, but they did not submit that report either to the Council for its consideration. That meant that the limited submissions on cutting and filling made to the Council came only from two other objectors and not from the applicants, although the applicants’ land in toto constituted at least two fifths of the entire area to be reclassified.¹⁰

Section 14 of Schedule 1 to the Act required the local government to consider every properly made submission about the proposed changes to the City Plan 2000. The respondent Council accepted that that meant it was obliged to give proper consideration to each such submission. The applicants contend that the Council failed to give proper consideration to a submission about compensatory excavation, as part of the applicants’ wider argument that there was simply no reason for the respondent to cause a change in classification of the applicants’ land. The respondent Council had produced a 42 page document entitled “Attachment ‘E’ Report on Submissions”, and that document did appear properly to consider the submissions made, albeit expressed in a summary form. The applicants did not actually make any submissions at all in their objections, as recorded in the document “Attachment E”, about compensatory cutting and filling. The only submissions on that topic were made by two other objectors,¹¹ and both those objections referred – it appears only – to the report by Wolter Consulting prepared about No 80 Groth Road.

Although the applicants successfully challenged the description of their land as “wetlands” (the Council abandoned that description), the applicants did not challenge by evidence from any expert the description of the reclassified land as a flood plain. Nor did they challenge the proposition, central to the Council’s decision, that residential development on their land would increase the risk of flooding downstream from theirs. Their case was essentially that the existing classification allowed the Council sufficient control over any development proposals.

There was no challenge to the assumption on which the Council acted, namely that the State government would not agree to rebuilding the northbound carriageway over Sandgate Road, the preferred solution recommended to the Council to reduce potential flooding problems. That meant, as the applicants’ argument recognised, that the issue was how best the Council could limit future flooding by other steps. Their submissions essentially accepted that the step the Council took, of reclassifying their property and some others as Environmental Protection Area, did achieve the object of avoiding an increase in downstream flooding from residential development on the reclassified lands. They argued only that there was no reason to reclassify, because the Council could control future development under the existing classification.

But their argument assumes that the applicants’ land, because of environmental constraints, is unsuitable for residential development. It relies on the desired environmental outcome of an Emerging Community Area, stated in the City Plan 2000, which include the protection and enhancement of waterway corridors. The argument leads to the conclusion that it is actually inappropriate to retain the Emerging Community Area classification for the reclassified land, because that land is unsuitable for residential development. As Mr Hinson SC submitted, reclassifying the land as in an Environmental Protection Area placed it under the classification most appropriate for it, and gave the most transparent notice that future residential development approval was very unlikely. Reclassification meant the Council had grounds to be satisfied, or it was not obviously unreasonable to be satisfied, that its planning scheme dealt with the core matters of water catchment areas and the effects of land use and development. Accordingly, I disagree with the applicants’ submission that changing the classification to the most appropriate one was arbitrary, capricious, and an improper use of power, and a step which there was no reason to take.

Other matters

Since it is common ground that residential development without compensatory filling will worsen flood problems downstream, a planning scheme that complies with the Act must deal with the effect of development of the applicants’ land and the water catchment area that land represents. Reclassification of the land to Environmental Protection Area is into an area described in City Plan 2000 as featuring natural and semi-natural broad hectare land that has important biodiversity, natural landscape, natural vegetation, waterways and water supply catchment values, elements and functions. City Plan 2000 advises that classification area is intended to accommodate primarily very low density residential and rural uses, and a desired environment outcome is that water quality in waterway corridors and catchment areas is not adversely affected by development and activities. That description in City Plan 2000 of the intent of an Environment Protection Area, and of a desired environmental outcome, is consistent with the objects of the reclassification by the Council, and consistent with the statutory requirements of a planning scheme.

On the information put to the Council, and not challenged, the reclassification was intended to reduce the risk of increased flooding that would be created by residential development of the applicants’ land. That risk was subject to the possibility of amelioration by compensatory filling and excavation, but the applicants did not put forward any proposal for such filling restricted to their own land. There was accordingly no such proposal for the Council to consider. If the classification of Emerging Community Area was retained, each application for development approval would of necessity be heard on the merits and subject to an appeal to the PEC. There would be less certainty of control over future residential development then exists under the current classification. The fact that the land is classified as an Environmental Protection Area solely for purposes of flood mitigation does not make that exercise an abuse of power; the maintenance of waterways is a relevant object of the power to make and amend Town Planning schemes.

The respondent argued, and I agree, that in any event “Wednesbury” unreasonableness is not per se the correct test when dealing with a planning scheme which has the character of a legislative instrument. Mr Hinson SC referred the Court to the decision in Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd & Ors (1996) 91 LGERA 31, where Sheller JA quoted, at p 43, from the decision of Williams ACJ and Kitto J in Clements v Bull (1953) 88 CLR 572 at 577, to this effect:

“If Parliament confers upon a subordinate body a power to legislate for limited purposes, it authorises even a decision which may be thought unreasonable, provided that nevertheless it is really legislation for those purposes. It may indeed be held invalid on the ground that no reasonable mind could justify it by reference to the purposes of the power; City of Brunswick v Stewart (1941) 65 CLR 88 at 97, 99; but that is only a way of stating the conclusion that no real connection with the purposes of the power can be seen.”

Sheller JA then went on:

“In Bienke v Minister for Primary Industries & Energy (1994) 125 ALR 151 at 163, Gummow J pointed out that Wednesbury unreasonableness is a doctrine which has grown up in cases dealing not with the law-making process but with decisions of an administrative nature, and particularly with the exercise of administrative discretion, where there is an obligation to act judicially. His Honour said:

‘The Wednesbury doctrine is concerned with ultra vires in a broad sense of vitiation by reason of engagement by the decision maker in an abuse of discretion …. Hence the force for the situation in the present case of the authorities referred to by Lockhart J in Austral Fisheries … These indicate that when the issue concerns not the exercise of discretion but the validity of delegated legislation, the question is a more precise or narrower one. It is whether there is a ‘real connection’ between the delegated legislation and the purpose for which the Parliament conferred the authority to make the law under challenge. Lockhart J referred to a number of High Court authorities of long standing which support that approach to the matter. Their force is not, in my opinion, diminished by the importation of any notion of ‘proportionality’: Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 at 574-578, 583-586’.”

Mr Hinson SC submitted that s 1.2.1 of the Act, describing its purposes, and s 1.2.3, describing conduct that constituted advancing the purposes of the Act, readily and immediately identified that advancing those purposes required judgments on matters of policy and planning. He submitted choices would, of necessity, be made about how best to achieve those defined purposes, which include co-ordinating and integrating planning at the local, regional and state levels, managing the process by which development occurs, and managing the effects of development on the environment. The Council’s responsibility under s 2.1.3 of the Act, to be satisfied that its planning scheme co-ordinated and integrated core matters, required the respondent to be satisfied that its planning scheme did appropriately co-ordinate development constraints, the effects of land use and development, and water catchment areas.

Conclusion

The reclassification of the 21 properties did have a real connection, that is a direct and substantial connection, with the purposes and objects of the power to make and amend planning schemes. That real connection provided the basis for the satisfaction required under s 2.1.3 of the Act. Reclassification of that land could be justified by reference to the purpose of managing the effect of development on the environment, and managing a water catchment area, by reducing the risk of increased flooding that residential development would cause. I agree with the view expressed in Minister v Rosemount by Sheller JA, with whom Cole JA agreed at p 80. The latter judge wrote:

“Subordinate legislation is said to be unreasonable if it can properly be said not to be within the purview of the power conferred by the legislature to make subordinate legislation (Minister for Primary Industries & Energy v Austral Fisheries Pty Ltd (1993) 40 FCR at 381-382 per Lockhart J). If, however, it can said that there is a “real connection” between the subordinate legislation and the purpose for which the regulation making power was conferred, the legislation will be held within power and thus not “unreasonable” (Clements v Bull (1953) 88 CLR 572-577; see cases cited by Lockhart J in Austral at 383-384”.

The applicants fail however the test is expressed, because of a lack of evidence. They failed to establish that the decision to reclassify their land was so unreasonable that no reasonable local authority could have come to it, and failed the more stringent test of establishing that there was no real or substantial connection between the exercise of the power of reclassification, and the objects of that power. Most importantly, they did not establish that the Council lacked proper grounds for satisfaction that, as amended, the planning scheme co-ordinated and integrated core matters dealt with and that as unamended, it did not. The learned judge constituting the PEC was satisfied the applicant had not shown the resolutions were plainly unreasonable, and that conclusion was amply justified on the evidence.

That was the only “test” for validity or invalidity argued by the applicants. The applicants also say the judge failed to consider the merits of their arguments and gave too few reasons, but that argument assumed there were other reasonable courses of action open, and the applicants did not establish that by evidence. It also assumed that the PEC could make a choice between policies available to the Council, and that is not the role of that Court. The respondent was responding to a planning matter and the applicants did not show there were other choices or courses so reasonably open, as to render the one chosen unnecessary and unreasonable, or lacking any real connection with the object of power to amend a planning scheme, or providing no real ground for satisfaction that the amended scheme dealt with core matters in a way the unamended one did not. I would dismiss the application, and order the applicants pay the respondent’s costs of the appeal assessed on the standard basis.

KEANE JA: I agree with the orders proposed by Jerrard JA, and with his Honour's reasons. I wish only to address some comments to the applicants' assertion that the reasons given by the learned primary judge were not adequate.

Before the learned primary judge, the principal argument for the applicants was that the amendments were "manifestly unreasonable" because there was no reason to make them. That was said to be because the Emerging Community Area classification within the existing City Plan gave the Council sufficient control over development within that area classification to enable the Council adequately to address the perceived flood mitigation issue. The learned primary judge found that, even though the Council's thinking in relation to flood control strategies had not always been consistent, the Council decided to amend the town planning scheme to address the issue of flooding.¹²

Once the learned primary judge accepted that the proposal for the amendments and their adoption was driven by a concern on the Council's part to address the problem of local flooding, it was inevitable that his Honour would not accept that the amendment of the City Plan could not be supported as an exercise of the Council's power to amend the planning scheme. His Honour concluded:

"Mr van der Walt in his comprehensive submissions has said everything that could possibly be said on behalf of the applicants. Some of the criticisms of Council’s consistency may be correct. However, those criticisms go to the merits of the change that was made. If this Court were to embark on a minute examination of each aspect of the Council’s decision, then it would be reviewing the merits of the changes. That is outside the lawful role of the Court. To put it another way – there is nothing to show that the result was one which no reasonable Council could have reached. In short, it is beyond the powers of the Court to review such matters of Council policy.

The appropriate procedures were followed, and the conclusion is not demonstrably wrong. It is true that the Council appeared to change tack about some environmental issues, but it remained focused on the question of flooding, a significant issue, which it was bound to consider. Its opinions, now reflected in a change to the Planning scheme, can’t be disturbed."¹³

It is readily apparent from the learned primary judge's reasons that his Honour did not accept the applicants' case that, because the issue of flood mitigation in the area was adequately dealt with by the existing City Plan, it was therefore unreasonable of the Council to pursue the amendments to the City Plan.

Contrary to the applicants' assertion, the learned primary judge did not proceed on the footing that the scope of the declaratory power conferred by s 4.1.21 of the Integrated Planning Act 1997 (Qld) (“IPA”) was too narrow to permit him to review the legality of the Council's decision-making. It is quite unfair to read his reasons in that way. It is well-established that proceedings for declaratory relief under s 4.1.21 of the IPA afford a means of reviewing the lawfulness of local government decision-making.¹⁴ It is nothing short of ridiculous to suggest that his Honour proceeded contrary to this well-established position. His Honour was clearly not denying the jurisdiction conferred on him by s 4.1.21 of IPA: he was making the point that the applicants had demonstrated no basis on which the court could conclude that the Council's decisions had been made unlawfully.

It must be understood that a party who seeks to challenge the exercise of a power to amend a town planning scheme on the ground of "unreasonableness" in the sense of that term, as explained by Sir Wilfred Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation,¹⁵ assumes a particularly heavy burden where the decision under challenge is one which involves the making or amendment of a planning scheme. Broad questions of policy, in respect of which reasonable minds might provide different answers, must be addressed by the decision-maker. IPA clearly intends that a local government will exercise a broad political discretion in determining the content of a planning scheme. The synthesis of conflicting views as to the desirability of development or environmental protection embodied in the content of a planning scheme will inevitably reflect the subjective opinions and policies of those responsible under the law for the formulation of the scheme. In such a case, "the real question … is whether the Council's decision can be said to be so unreasonable … that it is not a decision about the relevant subject matter in any meaningful sense of the word".¹⁶

A similar point may be made about the applicants' arguments in relation to irrelevant considerations or improper purpose.¹⁷ Because IPA gives only the broadest indication of the principles which are to be applied by a local government (and the relative importance of these principles) in the formulation and amendment of a planning scheme, an argument such as that advanced by the applicants here will arise only where some obviously applicable constraint has been ignored in reaching the decision to amend the planning scheme.¹⁸

The Council's powers of amendment of the City Plan were not constrained by the terms of the existing City Plan. It is well-established that the decision-making power of a local authority in relation to the amendment of a planning scheme is not confined by the necessity to preserve or conform to the balance between conservation and development previously struck by the existing planning scheme. The very purpose of the power to amend a planning scheme is to enable a local authority to attempt to strike what it perceives to be a better balance than had been struck by the existing scheme. The remarks of Cole JA in Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd & Ors¹⁹ are apposite:

"… the statute clearly contemplates amendment of existing environmental planning instruments by subsequent instruments. The later instrument cannot be said to be unreasonable merely because it amends a prior instrument. Nor does any such amendment interfere with the planning process in Pt 3 of the Act, or the consent process in Pt 4 of the Act. Indeed it is part of the planning process.

Subordinate legislation is said to be unreasonable if it can properly be said not to be within the purview of the power conferred by the legislature to make subordinate legislation (Minister for Primary Industries & Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 at 381–382 per Lockhart J). If, however, it can be said that there is 'a real connection' between the subordinate legislation and the purpose for which the regulation making power was conferred, the legislation will be held within power and thus not 'unreasonable' (Clements v Bull (1953) 88 CLR 572 at 577; see cases cited by Lockhart J in Austral at 383-384)."

Similarly in Lainson v Sutherland Shire Council,²⁰ Bignold J said:

"However since the statutory power of the Council to alter the draft DCP is unconfined except by the purpose and object of the EP&A Act and Regulation the absence of planning explanation, rationale or justification for the Council's decision to change the relevant floor space ratio for Precinct 11 does not materially assist the applicant's challenge because “no consideration is to be inferred to be irrelevant to the exercise of the instant power unless from the nature of the power and in its context it appears to be so”: per Mahoney JA in Noroton Holdings Pty Ltd v Friends of Katoomba Falls Creek Valley Inc (1996) 98 LGERA 335 referring to the seminal decision of Dixon J in Water Conservation & Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 where his Honour had said:

'But, though the discretion is neither arbitrary nor completely unlimited, it is certainly undefined. I have before remarked on the impossibility, when an administrative discretion is undefined, of a court's doing more than saying that this or that consideration is extraneous to the power (Shire of Swan Hill Corp v Bradbury (1937) 56 CLR 746 at 757, 758). But there must be some warrant in the provisions, the nature or the subject matter of the statute before so much can be said of a particular consideration that has been acted upon. What warrant have we in point of law for saying that the considerations governing the Commission's refusal of consent to the transfer to Carbone can be material to no purpose falling within the scope and object of the Commission's discretion?'"

The applicants' complaint that the reasons of the learned trial judge were inadequate arises from a failure to appreciate that the learned primary judge sought to explain, in the kindest possible terms, that they had failed to mount an arguable challenge to the lawfulness of the amendments in question. It is, therefore, appropriate to state clearly that the applicants failed to raise even an arguable basis for asserting the unlawfulness of the amendments to the City Plan. The applicants were always bound to fail in this challenge because their challenge was based upon a profound misunderstanding of the scope of judicial review of the decisions made by the Council in the process of amending a planning scheme under Sch 1 of IPA.

LYONS J: I have had the advantage of reading the reasons of Jerrard JA and Keane JA. I agree with their reasons and with the orders proposed by Jerrard JA.

Footnotes

1. See paragraphs 41, 42, 44 and 62 of the Applicants’ written submissions delivered to the learned judge, and paras 12, 35 and 37 of the Applicants’ written argument on this appeal. ↩

2. Section 2.1.23 of the Act. ↩

3. At AR 371. ↩

4. At AR 1027 and 1028. ↩

5. At AR 1047. ↩

6. At AR 1049. ↩

7. At AR 1058. ↩

8. At AR 1128. ↩

9. See the Plan at AR 200. ↩

10. Reproduced at AR 1036. ↩

11. At AR 1128 and 1158. ↩

12. Massie & Ors v Brisbane City Council, unreported, Brabazon QC DCJ, QPEC No 1765 of 2006, 15 December 2006 at [28]. ↩

13. Massie & Ors v Brisbane City Council, unreported, Brabazon QC DCJ, QPEC No 1765 of 2006, 15 December 2006 at [38] – [39]. ↩