Pierce & Ors v Rockhampton Regional Council [2014] QSC 104

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GENERALLY - where the respondent made the decision to resume the first applicant's land under the Acquisition of Land Act 1967 (Qld) for road purposes - where the land to be resumed had a private road already constructed on it - where the resuming of the land will have a serious detrimental effect on the applicants - whether the respondent failed to take into account relevant considerations - whether the respondent's decision was unreasonable - whether the respondent's decision was based on no evidence.

Acquisition of Land Act 1967 (Qld) s 9

Judicial Review Act 1991 (Qld) s 20, s 24

Local Government Act 2009 (Qld) s 59, s 60

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 cited

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 cited

Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24 cited

East Melbourne Group Inc v Minister for Planning [2008] VSCA 217 cited

Hanson v Commonwealth Director of Quarantine (1984) 57 ALR 365 cited

In re Corporation of the City of Hawthorn; Ex parte Co-operative Brick Co Ltd [1909] VicLawRp 6; (1909) VLR 27 cited

Kamal v Minister for Immigration and Multicultural Affairs [2002] FCA 818; (2002) 126 FCR 467 cited

Lipovsek v Brisbane City Council [2013] QSC 185 distinguished

Love v Victoria [2009] VSC 215 applied

Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211 distinguished

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 applied

Minister for Immigration and Citizenship v Li (2013) 87 ALJR 618; [2013] HCA 18 applied

Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666; [1980] FCA 85 cited

Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222; [2002] HCA 32 applied

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Applicants S134/2002 (2003) 211 CLR 441; [2003] HCA 1 cited

Parramatta City Council v Pestell (1972) 128 CLR 305; [1972] HCA 59 applied

Sydney Municipal Council v Campbell [1925] AC 338 distinguished

TV Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 70 ALR 147 cited

[1] McMeekin J: This is an application for a statutory order of review of the decision of the respondent, the Rockhampton Regional Council ("the Council"), to compulsorily acquire land owned by the first applicant, Mr Robert Pierce, for road purposes under Section 9 of the Acquisition of Land Act 1967 (Qld).

[2] While I will detail the history of the matter later the problem facing council was this: The Pierce family own, and for many decades have owned, much of the land east of the Bruce Highway and about 20 kilometres south of Rockhampton in the Midgee-Port Alma districts. In the great flood of 1954 a section of the public road connecting their lands to the wider road network fell into the Fitzroy River. Since then there has been a private connecting road across the land now owned by Mr Robert Pierce, but no public one. It seems likely that this was a solution worked out among members of the Pierce family, some of whom were on Council at the time. Problems about access by neighbouring landholders have been agitated since about 1983. The Council has now exercised it powers to resume land encompassing the private road to establish a connection. Various members of the Pierce family oppose its decision.

[3] As will be seen I reject the applicants' complaints. In my view they fall well short of justifying judicial review of an administrative decision.

[4] Before embarking on a detailed consideration of the arguments I observe that some of the arguments advanced by the applicants seemed, with respect, to not recognise the limits on a Court asked to review an administrative decision. The principles applicable to judicial review of administrative decisions were usefully summarised by Ashley and Redlich JJA in East Melbourne Group Inc v Minister for Planning[1]:**

[174] The proceeding sought judicial review of the Minister's decision. The scope and purpose of judicial review is to ensure that powers are exercised for the purposes for which they were conferred and in the manner in which they were intended to be exercised. JJ Spigelman AC 'The Integrity Branch of Government' (2004) 78 (11) ALJ 724, 730. It is the extent of power and the legality of its exercise to which judicial review is directed. Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1, 35-36 (Brennan J); Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510, 579 (Gummow and Hayne JJA); Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, 373 (Kirby J ).

[175] Having regard to the way in which the litigation was conducted, both at trial and on appeal, it is necessary for us to consider the material in order to see what reason or reasons the Minister gave for her exercise of the discretion to exempt. That said, we are conscious of the need to proceed with caution lest we exceed our supervisory role and trespass into the forbidden field of merits review. Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 41-42 (Mason J); Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1, 36-37 (Brennan J); Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10, [127] (Spigelman CJ); Bruce v Cole (1998) 45 NSWLR 163, 184; Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589. It would not suffice if we took the view that a different decision would have been more appropriate or that another Minister might have reached a different result. Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611, 626-627, (Gleeson CJ and McHugh J); Friends of Hinchinbrook Society Inc v Minister for Environment (No 2) , 59-65, (Sackville J). As Brennan J said in Attorney-General (NSW) v Quin ; , 35-36:

The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

[176] In Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110, 118-119 Gibbs J observed

However, where the matter of which the [decision-maker] is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached.

[177] Gleeson CJ and McHugh J, in their joint judgment in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 referred to the following passage from the judgment of Lord Brightman in Puhlhofer v Hillingdon London Borough Council [1986] UKHL 1; [1986] AC 484, [14]:

Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.

[178] We recognise that 'minor infelicities or trivial lapses in logic in cases where [a decision-maker's] satisfaction as to a factual state provides the jurisdictional foundation for the exercise of power' would not warrant judicial review. Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59, [148] (Kirby J). As Kirby J stated in Re Minister for Immigration and Multicultural Affairs:

The degree of restraint that a court will exercise in circumstances where the fact-finding process is said to have miscarried to a significant degree, so as to amount to jurisdictional error, will to a considerable extent depend upon the nature of the applicable power, the statutory context and the effect of the impugned decision. For instance, where an assessment and evaluation of complex evidence is required by an expert administrative agency, a greater degree of restraint may be called for. Similarly greater caution is appropriate where the subject matter of the decision involves a significant element of governmental policy or allocative determinations, making it more remote from ordinary judicial experience. Ibid [130]-[131].[2]

[5] The grounds pleaded in the amended application are:**

(a) the making of the decision was an improper exercise of the power conferred on the respondent, particularised as a failure to take into account seven identified considerations which I set out at paragraph [48] below and Wednesbury[3] unreasonableness;

(b) the decision involved an error of law namely an assumption that the respondent was required to provide road access for allotments that would otherwise have no such access;

(c) there was no evidence to justify making the decision as there was no evidence for seven identified "conclusions" set out at paragraph [90] below; and

(d) the decision was so unreasonable that no reasonable person could have made it and the respondent's conclusion was against the weight of the evidence in that it failed to take into account the submissions, objections, and or proposals put forward by the applicants.

**[6] The onus rests on the applicants to demonstrate the illegality of the decision in question. Before examining the grounds said to justify review it is necessary to recite the background and history of the matter in more detail to put the arguments in context.

[7] The land subject to resumption comprises three large freehold rural lots approximately 20 kilometres south of Rockhampton and is described as follows:

[8] The second applicants, Mr Morris Pierce and Mr Kerrod Pierce, lease those lands. The third applicant, Mr David Pierce, is a neighbour whose enjoyment of his lands, he says, will be affected by the decision.

[9] The resumption area covers the site of an existing private and so undedicated but formed gravel road, approximately 3.2km in length, running in a south-easterly direction through the subject lots.

[10] This existing private road links two sections of a public formed road, Casuarina Road, together - the western section and the eastern section. The eastern section of Casuarina Road (sometimes referred to as lower Casuarina Road) is presently unconnected to the broader road network under the control of the Council.

[11] This has effectively resulted in properties fronting the eastern section of Casuarina road becoming "landlocked" as their owners presently have no lawful route available to travel to that road from the broader network or access the broader road network from eastern Casuarina Road. This section of lower Casuarina Road has two Council bridges constructed along it, the first over Serpentine Creek and the second over Swan Creek. Access between the two sections of road is controlled by a locked gate on the western end of the existing private road link owned by the first applicant.

[12] Eastern Casuarina Road was originally connected to the broader road network via what is now known as River Road, which runs north to south along the course of the Fitzroy River. As a result of flooding of the Fitzroy River in 1954, River Road collapsed into the river, cutting off access to eastern Casuarina Road, and the bridges and properties that were located in that section. Attempts to rebuild River Road failed due to further flooding in 1956.

[13] The existing private road link connecting the two sections of Casuarina road was constructed sometime in the early 1960s allowing access to the eastern section of the road. In earlier times there was a corduroy road in place in much the same location.

[14] There is a factual dispute between the parties as to who performed the construction and who was responsible for the maintenance of this private road link up until 1983. The respondent claims that the construction of the road was carried out by Council workers with assistance from the Pierce family. It claims that the Council continued periodic maintenance of the existing private road link up until 1983. The applicants contend that the private road was constructed at the expense of the Pierce family and maintained by them throughout this period and up until the present day.

[15] For present purposes, counsel for the respondent accepted that the evidence supported the view of the applicants. That concession was rightly made - while the evidence supporting the applicants' position was hardly compelling, the only evidence to support the respondent's position was both hearsay and unreliable. Counsel for the respondent submitted that while the issue was potentially of significance on the question of compensation, it was irrelevant to the questions that need to be determined here. I think that is right.

[16] In the early 1980s, a lock was placed on a gate at the western end of the private road. That had the effect of cutting off access to the eastern section of Casuarina Road. Passing along the road was only possible to those that had been issued with keys to that gate. Council had no right of access then to its roadways or bridges in that eastern section. As a matter of practise access has never been denied to Council, and there has been no suggestion that it ever would be, so long as the Pierce interests control the land.

[17] Following this action by the Pierce family, the then Fitzroy Shire Council adopted Policy RDS 1.1.3 "Casuarina Road" which provided that it would cease further work on the eastern section of the road except for essential maintenance to the bridges and work paid for at private rates.[4]

[18] The restriction of access to the eastern section or lower Casuarina Road carries with it the potential for disagreements between the first applicant and the owners and occupiers of lots that rely upon access to their properties via the private road link. Coincidentally, perhaps,[5] I have previously ruled on a dispute between the second applicant and a neighbour over access across the second applicant's land located a little further south of the subject properties: see Naylor & Anor v Pierce & Anor [2010] QSC 399.

[19] On 2 July 2008, a meeting was held between each of the applicants and interested parties (including the Council's civil engineer Eric Russell, other Council officers and local land owners) to explore options to resolve the Casuarina Road access issues. No course of action was agreed or resulted.

[20] There matters lay until 15 April 2009 when solicitors acting for disgruntled neighbours of the applicants wrote to Council pointing out that their clients' lands were landlocked and their access "tenuous at best."[6] The solicitors suggested that the most sensible and expedient method to resolve the access issues was to employ the Council's powers under the Acquisition of Lands Act 1967 (Qld) ("the Act").

[21] A report completed by the engineer, Mr Russell, was presented to the Council's Infrastructure Committee on 1 December 2009. Mr Russell recommended issuing Notices of Intention to Resume (under s 1 of the Act) to effect resumption of the private road link.

[22] A further report was completed by Mr Russell, in conjunction with the Council's Policy and Projects Officer, on 4 May 2010[7] ("the 2010 report") discussing three options to resolve the access issues:**

(a) Option 1: Full reconstruction of River Road from the locations shown as Points 5 to 6 to 7 to 8 to 2 on the Locality Plan,[8] generally along the route which collapsed in the 1950s, but on a new alignment south of Point 7. Costs for this option were estimated by Mr Russell to cost between $443,852 and $490,352.

(b) Option 2: Resumption along the existing private road link through the subject lots shown as Points 1 to 2 on the Locality Plan. Costs for this option were estimated by Mr Russell to cost between $100,000 and $165,610.

(c) Option 3: Construction of an existing dedicated road to the north of the existing private road link, and then reconstructing a part of the collapsed River Road on unconstructed road reserve from Points 1 to 7 to 8 to 2 on the Locality Plan. Mr Russell submitted that such an option would require complete gravel road construction over the entire route as well as securing a road dedication for all sections of River Road south of Point 7 that have eroded. The estimated costs for this option were between $428,139 and $474,639.

**[23] This further report once again recommended resumption of the private road link (described as Option 2).

[24] I interpose that it is evident that Mr Russell's estimates of the relevant costs are plainly flawed, at least on the evidence led before me. For example Mr Russell assumes the appropriate level of compensation under Option 2 is $70,000. The cost of construction of the private road to its existing standard was put at $237,963 as at April 2011 by Mr Russell.[9] How that might impact on the compensation payable was not explored but it is reasonable to suppose it may have some impact, and perhaps a substantial impact. Mr Russell evidently assumed for the purposes of his 2010 report that the road had been constructed by Council and was irrelevant to compensation issues. However I also note that Mr Russell flagged in his report that his assumptions regarding compensation may not be reliable. He noted: "A figure quoted for compensation may be vastly inadequate...".[10]

[25] Another issue concerns the assumptions underlying the level of service to be adopted. There was no attempt made to justify those assumptions in Mr Russell's reports or in any material placed before Council, save perhaps that Mr Russell pointed out that Council often get complaints about the level of service,[11] hence Council might wish to pre-empt problems. Council of course is not precluded from adopting whatever level of service they deem appropriate. It is therefore quite possible that the assumptions that were placed before Council as to the likely costs involved in the various options were inaccurate.

[26] Council resolved to issue Notices of Intention to Resume.**

**[27] Notices of Intention to Resume were delivered to the applicants in May, June and July of 2010. The first and second applicants objected, the first applicant by written notice of objection on 4 August 2010,[12] and the second applicant by a written objection on 30 August 2010.[13]

[28] Objection hearings were held on 12 August 2010 and 14 February 2011. Another scheduled for 7 September 2010 was not held as the second applicant did not appear. While the applicants had an opportunity to speak to their objections at the August and September hearings they were concerned about a lack of procedural fairness, the first hearing having being held before Mr Russell and the Council's Policy and Projects Officer. The third scheduled hearing was held before an independent delegate. Further submissions were made by the applicants in response to the delegate's report on 22 March 2011 and 10 April 2011.[14]

[29] On 12 April 2011 a further report prepared by Mr Russell and the Council's Policy Officer was made available to the members of Council ("the 2011 report"). The report was 150 pages in length and included a description of the history of the objection process with details of the written objections received, the objection hearings, and the reports prepared by the independent delegate following the third objection hearing.

[30] The next day, on 13 April 2011, the Council made the decision to resume the land which is the subject of this application. The Council resolution by which the decision was made to apply to the Minister to resume the subject lands includes a reference to each of the parcels of land affected and then reads: "having considered the report", a reference to the 2011 report, "the Council is of the opinion that the land ... is required for the purpose of road, for which it is proposed to be taken."[15]

[31] Reasons were requested by the applicants and subsequently provided, as follows:

(a) Council considered it necessary to re-establish access to the lower, eastern section of Casuarina Road (i.e. Lower Casuarina Road) so that:

(i) Casuarina Road can be connected to the rest of the road network;

(ii) Council can legally maintain its roads and bridges;

(iii) property owners can legally access their properties without having to seek the approval of another landowner for use of a private road

(b) Compulsorily acquiring the Resumed Land (i.e. the Existing Private Road) is the cost effective and efficient option open to the Council in that other options considered by Council are:

(ii) do not provide a long term solution that will guarantee access to the eastern section of Casuarina Road (i.e. Lower Casuarina Road)

Failure to take relevant considerations into account - s 20(2)(e) Judicial Review Act 1991 (Qld) ("JRA")

[33] The respondent contends, accurately I think, that to succeed on this ground the applicants must show three things:

(a) that the decision-maker did not take the consideration into account;

• (b) that the consideration was one that the decision-maker was, by law, bound to take into account; and
• (c) that the intention of the relevant legislation is that a failure to take the consideration into account will result in invalidity.[16]

[34] What the Council was bound by law to take into account is determined by the enactment under which the Council proceeded, s 9 of the Act which provides:

(1) If within the time stated in the notice of intention to resume no objection is made or if, after due consideration of all objections, the constructing authority is of the opinion that the land in question is required for the purpose for which it is proposed to be taken, the constructing authority may apply to the relevant Minister that the land be taken as prescribed by this section..."

**[35] The obligations thereby imposed on the Council were only two - to give "due consideration of all objections" and to form "the opinion that the land in question is required for the purpose for which it is proposed to be taken." That purpose was to use the land for road purposes and, specifically, "to re-establish access to the lower, eastern section of Casuarina Road" for the reasons identified.

[36] Was due consideration given to the objections raised by the applicants?

[37] Many of the arguments advanced by the applicants contend that there is no evidence that Council considered the matter the subject of the argument.[17] What precisely is contended for is not clear. Every matter touched on was included in the reports prepared for and provided to Council. The implication of the argument seems to be that it was incumbent on Council to lead evidence of their deliberations or of the discussions held. No authority was cited for the proposition.

[38] The process followed seems to have been comprehensive. There were three objections hearings, albeit that the second applicant did not attend the second hearing set down to consider his objections. The applicants were entitled to be heard at each of them. The third was conducted by an independent delegate. A report was prepared by the external delegate, a Mr Griffiths who had experience in road resumption matters. That delegate reached the same conclusion as did Mr Russell and his colleague - that resuming the private road link should proceed despite the objections raised by the applicants. He did so after detailed consideration of the objections. The applicants were given the opportunity of supplying a response to the delegate's report and some did so.

[39] A detailed report was then prepared again by Mr Russell and supplied to the decision makers (ie the 2011 report). Mr Russell was a qualified engineer with a long history of experience in road matters. The 2011 report contained all of the objections raised by the applicants, including complaints about the costings completed by Mr Russell, which figured largely in the applicants' attack on the decision, and the applicants' alternative proposals.

[40] The applicants submitted that the Council members did not themselves consider the 2011 report. The submission was mounted on the basis of insufficient time to consider it and reference was made to Lipovsek v Brisbane City Council.[18]

[41] As I have mentioned, the motion by which the resolution to seek the Minister's approval was passed by Council expressly avers "having considered the [2011] report". There is no other evidence touching on the question of whether the Council members did in fact consider the 2011 report. As mentioned the report prepared by Mr Russell was voluminous consisting of approximately 150 pages. It would take a deal of time to study and comprehend. It had attached to it the various objections received and the report of the independent delegate - the matters that the councillors were required to consider: s 8(2) of the Act. Although formally delivered the day before the Council decision was taken, the 2011 report was in fact provided to councillors via email four days before the relevant meeting - at approximately 8:00pm on 8 April 2011.[19] Whether any councillor opened it or not is not known. But, prima facie, I see no reason why it should not be assumed that the decision makers have considered the information placed before them for the very purpose of making the decision, particularly where the decision reflects the content of the information provided and particularly where, by their resolution, they have claimed to have done so.

[42] These facts are far removed from the situation in Lipovsek. There the report supplied to Council did not deal with the objections raised except to refer to the fact of the objections, that they could be found at a certain location in Council files, and the fact of the objection hearing. There was no evidence that the councillors were provided with either the objections or the delegate's report. Even if the councillors had read the report they would have been no better informed. No like inference follows here.

[43] The onus to make out the ground is on the applicants. In the absence of any other evidence I see no reason to make a finding that the 2011 report was not given appropriate consideration by the Council members in their decision making.

[44] The remaining issue is whether the respondent formed the opinion that the resumed land is needed for road purposes. As mentioned previously I am precluded in the context of a judicial review from considering the merits of that opinion. The observations of Menzies J in Parramatta City Council v Pestell[20] are also pertinent:

"There is a world of difference between justifiable opinion and sound opinion. The former is one open to a reasonable man; the latter is one that is not merely defensible - it is right. The validity of a local rule does not depend upon the soundness of a council's opinion; it is sufficient if the opinion expressed is one reasonably open to a council. Whether it is sound or not is not a question for decision by a court."

[45] The Council has expressed the opinion in its stated reasons that the land was needed for the purpose specified. There is evidence to support such a need - Council had no lawful access to its own bridges and roads; landholders had no lawful access to their land. To achieve such access is a legitimate objective for any Council. Indeed the Council is under a statutory duty to control all roads in its local government area (other than State controlled roads or a public thoroughfare easement) and for that purpose is given the express power to acquire land: s 60(1) and 60(2)(h) of the Local Government Act 2009 (Qld). "Road" is defined to include bridges: s 59(2)(d) of the Local Government Act 2009. Given that statutory duty it is impossible to argue that the formation of the requisite opinion is some form of sham - arguably, the Council would be derelict in its duty if it left its ability to control its roads and infrastructure at the whim of private interests, when it had the capacity to do otherwise.

[46] Whether the subject lands are in fact "required" for road purposes is left to the Council to determine. There is no objective test that needs to be satisfied nor is there some measure of degree of necessity to be reached.[21] As the Council submits the legislation envisages that it is the subjective opinion of Council that must be formed as to what is "required" and there remains only the supervisory function of the court to ensure that due process is followed.[22]

[47] Plainly Council has formed the relevant opinion. What the applicants really argue is that there was a better way to achieve the same purpose - by adopting one of their proposed alternatives. Even if those alternatives were shown to be superior that would not meet the test. The Council is entitled to get their decision wrong, unless the decision can only be seen as perverse. I will come to that argument later.

[48] The matters that the applicants contend ought to have been brought into account and were not are either matters that the Council was not required to consider by the legislation or matters that plainly were before the Council when the decision was made and apparently considered. Those matters are particularised by the applicants as:**

(a) the impact of the resumption on the applicants' enjoyment and use of their land;

(b) the offer of the applicants to provide alternative access;

(c) the objections and submissions by the applicants;

(d) the nature, extent and frequency of flooding of the proposed access road;

(e) the respondent's policy in respect of the opening of unconstructed roads;

(f) the prospect that alternative access arrangements would provide access for larger number of properties; and

(g) the fact that alternative access arrangements would provide greater and better connections to the road network.

**[49] Only the matter described in (c) above is expressly mandated by the legislation as one for consideration. I have dealt with that above.

[50] It is at least doubtful that the Council was legally obliged to consider the remaining matters, but even if they were so obliged, each of those matters was referred to in the comprehensive 2011 report provided to Council or was self evident.

[51] The applicants argue that there is no reference to these various matters in the reasons that were subsequently provided at their request and so an inference should be drawn that they were not considered. The inference simply does not follow. The reasons were not intended to be a comprehensive statement of every consideration that impacted on the decision. It was a statement of the matters that caused the Council to act as it did. The situation would be different, I perceive, if the Council were endeavouring to argue that one of the nominated but omitted matters did justify its decision. Then an inference might more readily be drawn that it had not brought the matter into account (cf. East Melbourne Group Inc v Minister for Planning[23]at [312] per Ashley and Redlich JJA). But the point of the reasons was much more limited - to state why the decision was made, not to state every matter considered.

[52] Nonetheless, I turn to the question of whether the Council was obliged to consider the various matters identified. As there is no express requirement in the legislation that these matters be considered the argument must be that there was an implicit obligation on the Council to consider them. That there can be an implicit obligation is clear:**

"The Court has no jurisdiction to visit the exercise of a statutory power with invalidity for failure to have regard to a particular matter unless some statute expressly or by implication requires the repository of the power to have regard to that matter or to matters of that kind as a condition of exercising the power."[24]

**[53] As to (a) - in my view the Council was not required to have regard to the impact on the applicants' enjoyment and use of their land. The theory underlying any resumption is that there will be just compensation. Compensation matters are not a matter for objection (s 7(3)(e)(ii) of the Act) and so implicitly excluded from consideration, given that the Council is required only to consider the objections.

[54] The applicants argue the matter two ways - one, that the impact on the landholders is fundamental and so a necessary matter for consideration; and two, that the compensation might be less if the alternatives they urge were adopted. No authority was cited for the first proposition, which is telling. The failure to make any reference to the position of the affected landholders in the legislation, save that just compensation not be the subject of objections, counts strongly against the argument. The second point - it would be cheaper for the Council to take an alternative route - really goes to the merits and is a matter peculiarly for Council to determine both as to the accuracy of the asserted fact and its relative importance.

[55] In any case there is good reason to think the matter was in the forefront of the councillor's minds. The comprehensive objections received could not fail to bring home to the Council members that the landholders in the district were concerned with the impact of the resumption on their enjoyment of their lands. There is no reason at all to think that consideration was not given to the matter. Indeed it is self evident that forming a public road through the middle of the first applicant's property carries with it the potential to have a serious detrimental effect on his grazing business. No rational person could not have been aware of this.

[56] Finally, this case has the feature that whatever the decision Council reached, it would interfere with property rights. It was common ground that the existing dedicated road reserve - described as "River Road" - that once was used to link the two ends of Casuarina Road was not a viable option for a reconstructed road because of flooding and the changed course of the Fitzroy River.[25] Each of the alternatives proposed involves an intrusion onto, and a taking of, private land. So when complaint is made about the adverse impact on the enjoyment of land, the issue is a comparative one, and one unexplored in the evidence.

[57] If the argument be that the comparative disadvantages of the option chosen were so great that no reasonable council could have ignored them, then the onus was on the applicants to show that. Each of the alternatives traversed the first applicant's lands. He did not give evidence at all, let alone establish that there were significant and compelling disadvantages with the option the Council preferred.

[58] The matters referred to in paragraphs (b), (c) and (d) were mentioned in the 2010 and 2011 reports and expressly dealt with there. The policy referred to in (e) is irrelevant on its face. It applies to the situation where a private party wishes to construct a road and Council will need to maintain it, not where Council wishes to build a road.

[59] The matter referred to in (f) - the prospect that alternative access arrangements would provide access for a larger number of properties - effectively amounts to a contention that the Council were obliged to bring into consideration the effect of the resumption on persons presently unaffected by the decision. Council contends that the premise is not made out.[26] But irrespective of that, accepting the premise, that Council could build a road somewhere else and benefit landholders there with the provision of better or legal access cannot be relevant.

[60] One stated purpose of the resumption was to provide legal access to landholders fronting the eastern section of Casuarina Road who were cut off from the broader road network. That landholders in other sections of the shire were also cut off from the broader road network might require attention from the Council as well. That was acknowledged in the 2010 report.[27] But that consideration cannot impact on the legality of this decision. The argument in essence is that there is a better solution than the one adopted - plainly a matter going to the merits of the decision and not justicable here.

[61] Similarly the matter referred to in (g) - that alternative access arrangements would provide greater and better connections to the road network - goes not to the legality of the decision but to the merits of it.

[62] There is no reason to think that these various matters went unconsidered. Generally each goes to the merits of the decision. The applicants argue that each of those matters would justify a different alternative proposal being adopted. Council evidently disagrees. That is a matter for the Council not the Court.

[63] The applicants argue that the lack of consideration of these various matters engages the Wednesbury level of unreasonableness. Again a reference to the majority decision in East Melbourne Group Inc v Minister for Planning[28] is useful:

[183] A decision may be unreasonable in the Wednesbury sense because it is manifestly unreasonable, that is, it simply defies comprehension, R v North and East Devon Health Authority; ex parte Coughlan (2001) QB 213, 244 (Lord Woolf MR) or because it is obvious that the decision-maker consciously or unconsciously acted perversely. Puhlhoffer v Hillingdon London Borough Council [1986] UKHL 1; [1986] AC 484, 518 (Lord Brightman). Wednesbury unreasonableness will also be made out where there was manifest illogicality in arriving at the decision - there being illogical findings, or inferences of fact unsupported by probative material or logical grounds. Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 356 (Mason CJ); Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1; (1999) 160 ALR 543, [20]-[26]; Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611, 145 (Gummow J); Gamaethige v Minister for Immigration and Multicultural Affairs [2001] FCA 565; (2001) 183 ALR 59, [28] (Finkelstein J); Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 ; [34], [37] (McHugh and Gummow JJ); [127] (Kirby J); Australian Retailers Association v Reserve Bank of Australia ; , [559]-[561] (Weinberg J). A decision resting upon a finding of fact totally unsupported by evidence which is critical to the decision, whether expressed as the taking into account of an irrelevant consideration, error of law, or unreasonableness, cannot stand: Luu v Renevier ; 'Irrationality' thus encompasses disregard of relevant considerations, giving regard to irrelevant considerations and manifest unreasonableness. Associated Provincial Picture Houses Ltd v Wednesbury Corporation ; , 233-4; Council of Civil Service Unions v Minister for Civil Service [1985] AC 374, 410 (Lord Diplock)."

[64] More recently the High Court has again visited the principles that apply in Minister for Immigration and Citizenship v Li.[29] The tests adopted there include whether the decision complained of is "arbitrary, capricious, or lacks common sense"[30] or "lacks an evident and intelligible justification".[31] As Gageler J said the test for unreasonableness is "stringent" and judicial determinations of Wednesbury unreasonableness in Australia has, in practice, been rare.[32]

[65] Two further observations from the decision of Minister for Immigration and Citizenship v Li are pertinent here. First, French CJ pointed out that the unreasonableness ground was not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which the Court disagrees even though that judgment is rationally open to the decision-maker. That is essentially what the applicants do here.

[66] Secondly, in their joint judgment Hayne, Kiefel and Bell JJ, after referring to the close analogy between judicial review of administrative action and appellate review of a judicial discretion identified by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd in the context of unreasonableness and to the principles governing the review of judicial discretion articulated in House v The King[33] concerning an inference of unreasonableness, said:

"...The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification."

[67] Reasons have been provided here and those reasons are entirely comprehensible. Far from lacking "an evident and intelligible justification" the decision involved a judgment that was "rationally open to the decision-maker." That this is so is self evident. The evidence before the Council was to the effect that:**

(a) That the private road link was the most direct way to link Casuarina Road;

(b) That resuming the private road link was the most cost effective option;

(c) That the alternative options each had greater risks of flooding or erosion due to their close proximity to the Fitzroy River; and

(d) That private arrangements between landholders to access the lower section of Casuarina Road were potentially subject to cancellations and not binding on future owners.

**[68] In the light of these considerations it is impossible to conclude that no reasonable person could have reached the opinion that the Council did - that the subject lots were required for the purpose of the perceived need for a public road connecting the two sections of Casuarina Road. None of the epithets used to describe a decision susceptible to review - "simply defies comprehension", or "obvious that the decision-maker consciously or unconsciously acted perversely", or "arbitrary, capricious, or lacks common sense" or "lacks an evident and intelligible justification" or "manifestly unreasonable, that is, it simply defies comprehension" or "manifest illogicality" - apply here.

[69] The applicants argue that the key to the decision was cost and Mr Russell's costings were flawed. It is certainly true that it is difficult to think that the estimated costs were accurate. But there are two answers to the argument. First, it is not shown that cost was critical to the decision making process, in the sense that cost considerations, standing alone, were paramount. It was certainly one of the strands supporting the decision and an important one but not an essential link in a chain of reasoning. I will return to the issue later. Secondly, what Mr Russell set out to do was to consider broad comparative costs. As I have said whatever decision was reached the taking of land and the construction of a road was involved. Mr Russell thought that the option chosen was the cheapest. He was not shown to be wrong in that opinion. That he was wrong in an absolute sense, that is the amount allowed might be greater than he estimated, does not meet the case. This comes nowhere near the level necessary to justify interference.

[70] On this issue the applicants argue that Mr Russell did not compare like with like. That depends on how one defines "like." Mr Russell's comparative cost analysis assumed an upgrading of the standard of the road supplied for the entire length of option 1. It was argued that was inappropriate. His approach meant that there was an upgrading of the standard of a considerable length of "River Road", an existing constructed road. What he should have done, it was submitted, was take into account only the cost of crossing private land in each of the options and then the comparative cost advantage of the option chosen, option 2, would have disappeared. I am not sure that Mr Russell accepted that the conclusion drawn was correct.[34] But assuming that the conclusion is right the standard to which the road is constructed is essentially one of policy. Mr Russell's approach results in the same standard of road along its entire length - whether it be option 1 or option 2. That accorded with what he thought Council wished to achieve. That decision is not so lacking in common sense as to merit interference by this Court.

[71] The applicants question the motivation of the Council in determining that there was such a need at all. If the Council exercised its powers in an apparently unreasonable way induced to do so by improper motives then that would attract the intervention of the Court. As French CJ observed in Li:

"the requirement that officials exercising discretion comply with the canons of rationality means, inter alia, that their decisions must be reached by reasoning which is intelligible and reasonable and directed towards and related intelligibly to the purposes of the power. Those canons also attract requirements of impartiality and 'a certain continuity and consistency in making decisions.' They were reflected in the powers of the English Court of Chancery to control public bodies 'if they proceed to exercise their powers in an unreasonable manner; whether induced to do so from improper motives or from error of judgment.'"[35]

[72] However attributing improper motivation to a collective body such as a local government council has difficulties. In In re Corporation of the City of Hawthorn; Ex parte Co-operative Brick Co Ltd[36] speaking of a by-law of an elective municipal council, Cussen J. said: "So far as the question of bad faith is concerned, if it is meant by this that individual councillors were actuated by improper motives in giving their votes, I find no evidence of the fact, and even if there was, I find great difficulty in seeing how such a contention could be given effect to. Each councillor may be actuated by many reasons, each having some different reasons from the others, and it seems to me almost, if not quite, impossible to penetrate into their minds. It must at least be necessary to show that the improper motive was the sole or dominant one, and that but for it a majority would have voted against adopting the by-law."

[73] There is no evidence at all here of any improper motive, even in one mind, let alone it being a dominant motive of the council.[37] Nor is it possible to draw any inference to that effect. There is nothing unreasonable about the Council wanting legal access to its roads and infrastructure. Nor is there anything unreasonable about providing rate payers with legal access to their lands from the public roads. It is not to the point to argue that there has not been difficulty in the past.[38] As the Council submitted the ownership of the lands may not always be within the Pierce family and, even if it was to so remain, past behaviour is no guarantee of future behaviour. That any person should require the leave and license of another landholder to access their property - particularly in the case of the landholders in the District where the keepers of the key are competing graziers - seems completely antagonistic to the concept of private property and its usefulness as a capital asset.

[74] The applicants argue that the Council's own policy - the "Unconstructed Roads Policy" demonstrates its improper motivation. The applicants point out that there is nothing in the policy that supports the use of the Council's powers of resumption to provide legal access for landholders in the shire. That is true. But as the policy is not concerned with the provision of access by Council that is unsurprising. It is concerned with the situation where Council does not want to provide access but the landholder is prepared to expend monies to obtain access. The existence of this policy is certainly not proof that Council had a policy not to provide landholders within the shire with legal access to their lands.

[75] The argument that the decision here demonstrates an inconsistency in Council policies is, in one sense, accurate enough but it is irrelevant. To provide some landholders with legal and constructed access while others who, under this policy, must construct their own access even though they already have legal access, albeit unconstructed, to their land is not, as a matter of logic, proof of improper motivation. Councils do not have an unlimited budget. Council's decisions in these matters falls squarely within "a matter of opinion or policy" and it is very difficult, where that is in issue, to show error or unreasonableness: Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110, 118-119 per Gibbs J. It is not a question of the Council demonstrating reasonableness, as the applicants' submissions tend to argue, but for the applicants to show unreasonableness to a level of perversity. They do not.

[76] These arguments all are essentially that the Council has "given insufficient or excessive consideration to some matters or has made an evaluative judgment" with which the Court is invited to disagree. As French CJ pointed out in Li this is not a permissible argument on this ground.

[77] The second ground identified in the amended application was: the decision involved an error of law namely an assumption that the respondent was required to provide road access for allotments that would otherwise have no such access.

[78] The short answer to the argument is that nowhere does it appear that the Council assumed any legal requirement to provide access at all. In the reasons supplied Council said "Council considers it necessary to re-establish access to the lower, eastern section of Casuarina Road...". To perceive a necessity is not the same as being under a misapprehension that one is legally obliged to do something. There is no reference in the 2011 report to any legal obligation on Council to take action.

[79] The reading of the reasons does not suggest anything more than a desire of Council to resolve the ongoing access issues with finality. There is no error of law shown.

[80] This ground invokes both the common law concept of the no evidence ground and the statutory ground set out in s 20(2)(h) and s 24 of the JRA.

[81] At common law the decision maker commits an error of law should a finding be made for which there is no evidential basis. The common law test requires that there be no probative evidence at all, no matter how slight, to justify the decision.[39] Just how stringent is that test is exemplified by Glass JA's statement in Azzopardi v Tasman UEB Industries Ltd,[40] albeit in another context, that the following descriptions of an allegedly inadequate finding do not amount to an error of law, namely that:

"the finding is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it."

[82] The common law test is not met here. The opinions of Mr Russell and the independent delegate are plainly capable of constituting evidence sufficient to base the decision. The statutory test to which I now turn is arguably less strict.

(1) A person who is aggrieved by a decision to which this Act applies may apply to the court for a statutory order of review in relation to the decision.

(2) The application may be made on any 1 or more of the following grounds -

.... (h) that there was no evidence or other material to justify the making of the decision;

24 Decisions without justification - establishing ground (ss 20(2)(h) and 21(2)(h))

The ground mentioned in sections 20(2)(h) and 21(2)(h) is not to be taken to be made out -

(i) the person who made, or proposed to make, the decision was required by law to reach the decision only if a particular matter was or is established; and

(ii) there was no evidence or other material (including facts of which the person was or is entitled to take notice) from which the person could or can reasonably be satisfied that the matter was or is established; or

(i) the person who made, or proposes to make, the decision based, or proposes to base, the decision on the existence of a particular fact; and

**[85] There is disagreement in the authorities on whether s 24 provides the content to the ground identified in s 20(2)(h) or whether they are cumulative in effect and so it is necessary to satisfy both provisions - so that satisfaction of one of the conditions of s 24 is necessary but not sufficient. If the latter the applicants cannot succeed as, again, there was plainly some "evidence or other material to justify the making of the decision" and so the requirement of s 20(2)(h) cannot be met.

[86] Minister for Immigration and Multicultural Affairs v Rajamanikkam[41] is the leading case. It was decided in the context of the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth). There is no material difference between those provisions and their counterparts in the JRA. Most cases decided since Rajamanikkam assume[42] that the decision is authority for the cumulative approach. Gleeson CJ and Callinan J clearly thought so[43] and Kirby J observed that "the respondents acknowledged, properly, that the requirements of [the two subsections] were cumulative."[44] Gaudron and McHugh JJ clearly favoured an expansive interpretation.[45] Oddly, so did Kirby J. Despite the observation I have quoted Kirby J's conclusion is completely at odds with the cumulative approach. As a result text writers have doubted the correctness of the assumption on which the subsequently decided cases proceed.[46] As well the observation in the joint judgment of Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Applicants S134/2002[47] that s 5(3)'s second limb (so s 24(b) of the JRA) is an "exegesis of the ground of review in s 5(1)(h)" (that is s 20(1)(h) of the JRA), while Delphic, is also at odds with the assumption.

[87] I have not found it necessary to resolve the conundrum as in my view the applicants have not discharged the burden of proof on them of satisfying at least one of the subsections of s 24 JRA.

[88] It is plain that the applicants cannot bring themselves within s 24(a) JRA as the legislation governing the Council's decision had no requirement that any particular fact be established for the Council to form their opinion that the land was required for road purposes, as subparagraph 24(a)(i) requires.

[89] Section 24(b) requires that two conditions be satisfied. First, the applicants must show that the Council based the decision that the land is required for road purposes on the existence of a particular fact. There are difficulties in identifying what was critical to the decision. Secondly, they then must show that that fact did not exist - not that there was no evidence of that fact before the Council: Hanson v Director of Quarantine;[48] Kamal v Minister for Immigration and Multicultural Affairs.[49] The applicants did not attempt that task.

[90] Under the heading that "there was no evidence or other material to justify the making of the decision" the applicants then plead that there was "no basis for the following conclusions:**

(i) that there had previously been a 'road' providing access to allotments;

(ii) that there was any requirement upon the Respondent to provide access to allotments;

(iii) the option preferred by the Respondent would have the least flooding impacts;

(iv) it was not feasible to re-open the existing 'road';

(v) re-opening the former road would involve significant expenditure;

(vi) the resumption was the most cost effective and efficient proposal to provide road access; and

(vii) the impact of the resumption upon the Applicants was not relevant."[50]

**[91] While the applicants were critical of the evidence before Council, particularly in relation to (vi) the cost effective solution point, they did not seek to discharge that second requirement of showing that the "fact" in issue, if the various "conclusions" can be so described, did not exist.

[92] Indeed a fundamental difficulty with the applicants' approach is to construe evaluative opinions as objective facts susceptible to review on this ground. Section 24 assumes as a pre-condition of its application that there is in question an administrative decision that depends upon some anterior finding of fact. Where what is in issue is a decision that requires the formation of an opinion - that it is necessary to take land for road purposes - and where that opinion necessarily depends on the holding of a view on matters such as comparative cost and efficiency, as here, underlying which are a myriad of assumptions, it is difficult to see that s 24 has any part to play, beyond ensuring that the requisite opinion indeed exists.

[93] Nonetheless, evidence did exist to support a number of these conclusions. For example I did not understand conclusions (i) and (iv) to be in issue.[51] It was common ground that there had once existed a road linking the two sections of Casuarina Road - described as River Road - and that allotments to the south of the eastern end of the private road then had legal access to the public road network. River Road could not be re-opened because of flooding and the present position of the Fitzroy River. Options 1 and 3 that the applicants urged repositioned River Road onto private land to avoid these problems. Given the lack of feasibility of the re-construction of the River Road alternative, conclusion (v) - that re-opening the former road would involve significant expenditure - is irrelevant, but in any case an attempted re-opening would have involved "significant expense." Mr Russell analysed the potential costs in his report and arrived at an estimate of well over $400,000.[52] The costs were certainly not negligible.

[94] As already discussed, conclusion (ii) wrongly confuses a need perceived by Council with a "requirement" that Council act. There is no basis for the premise to the argument.

[95] Mr Russell's view was that conclusion (iii) was correct - the option preferred by the Council "would have the least flooding impacts." It is difficult to describe such an opinion as a "fact"- but the opinion certainly existed. Similarly with conclusion (vi). Mr Russell did advance the opinion that the resumption was the most cost effective and efficient proposal to provide road access. It is not irrelevant that these opinions were held by an experienced civil engineer with decades of experience of the issues under consideration. Council was not engaging in speculation or surmise in relying on them.

[96] As to conclusion (vii) I was not referred to any evidence that Council had determined that "the impact of the resumption upon the Applicants was not relevant." Rather the Council obviously reached the view that, despite any such impact, the resumption should go ahead. In his submissions Mr Fynes-Clinton, who appeared for the Council, points out that there is not only nothing in the statute requiring the Council to weigh in the balance the impact on the landholder, but poses the rhetorical question - how could a Council go about doing that?[53] If there is a need for land for road purposes then what level of impact is needed before a decision maker acts perversely in forming the view that the land is required? The applicants suggest no answer and I cannot conceive of one.

[97] In their concluding argument the applicants urge that "there was no evidence upon which Council could conclude that option 1 was not cost effective and/or would not provide a long term solution that will guarantee access to the eastern section of Casuarina Road."[54] The submission highlights the applicants' difficulties. Even if the premise is accurate - and it is not as there was evidence that option 1 was not cost effective - it is not to the point that another alternative might also meet the perceived need to provide a connecting road in a cost effective way. That is an argument going only to the perceived merits of the alternatives.

[98] There is a further issue. To make good the argument the applicants are required to satisfy the condition in subparagraph 24(b)(i) - to show that "the person who made ... the decision based ... the decision on the existence of a particular fact". The "fact" in issue must be one that satisfies the description, the key word being "based." The point was considered in Rajamanikkam.[55] There was not complete unanimity as to the approach that should be taken to these provisions. All justices were agreed that the relevant fact must be "critical" to the decision but arguably disagreed as to when that criterion is met.

[99] Gleeson CJ referred[56] with approval to the following passage from the reasons of Black CJ in Curragh Queensland Mining Ltd v Daniel:[57]

"Section 5(3)(b) does not require the identification of some single particular fact that may be said to be the foundation of the decision. A decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision."

[100] Hence relatively small facts in the overall scheme may prove to be critical as they may be influential in sending the decision maker down a particular path - the "fork in a road" analogy. Curragh distinguished between missing links in a single chain, which was critical in the relevant sense, and strands in a net. It is noteworthy that Gleeson CJ's judgment in Rajamanikkam went further in requiring that the applicant needed to show that without the assumption of the fact in issue the decision would have been different. Gaudron and McHugh JJ reasoned in the same way. If that is the test the applicants here did not meet it.

[101] Gaudron and McHugh JJ arguably pose a more stringent test[58] than Curragh, but as Muir J concluded in Ward v Medical Board of Qld[59] the Curragh test was "applied indirectly by Gleeson CJ, expressly by Kirby J[60] and is consistent with Callinan J's formulation."[61]

[102] What then were the critical matters? All seven of the conclusions pleaded were not. The reasons disclose three:**

(a) the Council perceived that it was necessary to re-establish access to the lower, eastern section of Casuarina Road;

(b) that necessity was occasioned by two considerations - to enable Council to legally maintain its roads and bridges; and to allow property owners to legally access their properties without having to seek the approval of another landowner for use of a private road;

(c) that perceived necessity could best be met by compulsorily acquiring the resumed land (i.e. the existing private road) because that was the cost effective and efficient option open to the Council.

**[103] Did those critical "facts" "exist"? Matters (a) and (b) plainly existed, namely that Council perceived a necessity and the bases for that perception were established. That the applicants perhaps don't accept that there is any need despite the lack of access is irrelevant. Arguably examination of these two critical matters exhausts the limits of s 24. Thereafter what is in issue is the merits of the solution adopted, a matter not justicable in these proceedings.

[104] But putting that to one side, again the applicants fail to discharge the burden on them. Matter (c) again is not a fact but an opinion but I assume here that it falls within the "facts" caught by s 24(b) and construe the requirement in the legislation as being that the applicants must show that the opinions were not merely arguably wrong but unable to be held by a rational person. The applicants did not do that. The conflicting evidence merely showed that, if that evidence was accepted, there were grounds to argue for the other alternatives.

[105] The Council referred in its reasons to cost and efficiency. The latter plainly encompasses the concerns about flooding.

[106] As the applicants submitted cost was evidently an important consideration. So much is clear from the following observations in the reports:**

"[Option 1] ... is not considered a viable option because of the amount of reconstruction required plus the resumption of land places the cost at well over $400,000.[62]

"The report advises that Option 2 was selected by the Council because of its cost effectiveness as well as providing the shortest travel distance to the bridges."[63]

"In relation to Option 3, this option, as stated in the BID, was ruled out because of the cost of construction, being more susceptible to flood damage and the additional distance."[64]

**[107] Mr Russell analysed the potential costs involved in the three options. A table of the costings appears in the 2010 report.[65] The table is brief and breaks down the estimates into three areas: Construction costs, Compensation and Survey costs. There is no explanation as to how these figures were determined. Upon request by the first applicant for a more detailed costing analysis, three separate tables were provided, one for each of the three options.[66] These tables analyse the costs in more detail. Clearly the tables, summarising as they do Mr Russell's estimates, are evidence. Their importance is not in an absolute sense - they were obviously only estimates - but in a comparative sense. While the applicants criticised the estimates they did not demonstrate, or seek to demonstrate, that as a tool for comparing the options they were so fundamentally flawed that no rational person would rely upon them.

[108] All options canvassed by the Council are susceptible to flooding. The resumed area is subject to flooding from Serpentine Creek which can cut off access along the private road.[67] Evidence was given that the private route is sometimes cut off for periods up to 6 weeks due to overflow from the Serpentine Creek.[68]

[109] The applicants might argue that a detailed analysis of the impact of flooding on each of the three options was not carried out to enable Council to compare one option with the others.[69] Presumably any such analysis would involve considerable time and expense. Council chose not to pursue more detailed evidence relying instead on the experience of its engineer. Mr Russell has been an engineer for over 30 years and involved in this matter since the late 1980s. He has conducted "numerous inspections" and had "numerous meetings with nearby property owners."[70] He would seem to be ideally positioned to comment. Mr Russell relied on the history of the flooding of River Road and observations of flooding, or lack of it, over the private road in more recent times and concluded that Option 2 was the least susceptible to flooding.[71] He was not shown to be wrong, albeit that the applicants disagreed with his conclusions.

[110] The extent to which the well known historical flooding of the area encompassing River Road impacted on the alternatives now proposed by the applicants, and so the decision, is not clear. The proposed alternatives are located well to the west of the old River Road but the difficulty is that the precise position of the two alternatives that the applicants advanced was not fixed - at trial Mr David Pierce gave evidence of a "new proposal" for the location of a road between point 7 and point 2 on Exhibit 5.[72]

[111] Cost and flooding impacts are intertwined. A more expensive option might be preferable if it provided a greater certainty of access. So merely showing that flooding is a problem with the option chosen does not advance matters greatly, nor does showing that another option might be cheaper.

[112] To establish the non existence of the "fact" - taken here as the essential assumptions underlying the opinion - it was incumbent on the applicants to demonstrate not that there was an arguable case that flooding impacts may be no worse if the alternative options were adopted but a positive case that by the expenditure of similar or smaller sums the alternatives were superior and so far superior in meeting the Council's stated objectives as to be unanswerable. I conceive that only in that sense could the statutory test of the non existence of the "fact" be met.

[113] I am doubtful that s 24(b) intends a court engaged in a judicial review to explore the respective merits of conflicting evaluative opinions. This is really to revisit the unreasonableness ground. But if it goes so far then the hurdle remains a very high one to surmount and I am not persuaded that the applicants, who carry the burden to negative the existence of any facts relied upon,[73] have surmounted that hurdle here.

[114] The final ground argued is again the unreasonableness ground: "the decision was so unreasonable that no reasonable person could have made it and the respondent's conclusion was against the weight of the evidence in that it failed to take into account the submissions, objections, and or proposals put by the applicants." I have dealt with these propositions in what I have already written.

[115] There is no merit in the application. It is dismissed.

[1] [2008] VSCA 217 at [174]- [178]

[3] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223

[4] Affidavit of EB Russell filed 13 November 2012 para 29(h)

[5] Cross examination of Mr Russell suggested that the applicants believe that agitation by Mrs Naylor for legal or upgraded access is ongoing: T1-71/25. And see para 22 and f/n 13 to the applicants' supplementary submissions

[6] Exhibit ERB-5 to the affidavit EB Russell filed 13 November 2012

[9] Affidavit of EB Russell filed by leave 29 April 2014 para 5, Ex EBR-33 and see T1-87/40 - 89

[10] Affidavit of EB Russell filed 13 November 2012 Ex EBR-11 at p93

[12] Affidavit of EB Russell filed 13 November 2012 Ex ERB-21

[16] Citing Love v Victoria [2009] VSC 215 per Cavanough J summarising the effect of Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at [39]

[17] For example see paras 4, 11, 17, 21, 24 and 25 of the applicant's supplementary submissions

[18] [2013] QSC 185

[20] [1972] HCA 59; (1972) 128 CLR 305 at [323].

[21] Cf. Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211 at [61] per McClure JA; [136]-[137] pre Buss JA

[22] Love v Victoria [2009] VSC 215 at [302] per Cavanough J

[23] [2008] VSCA 217 at [174]- [184], omitting [179]-[182]

[24] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 per Brennan J at 55

[25] At least I have assumed that it was common ground. Some of the submissions made seemed to assume that the re-establishment of the River Road remained a viable option. Mr Russell dealt comprehensively with the issues: see paras 118-128 of his affidavit filed 13 November 2012. He was not challenged on this. Mr David Pierce relocated his proposed alternative route further west (T1-39) presumably to avoid the flooding impact of the Fitzroy River.

[26] See para 50 of the Council's submission

[27] Affidavit of EB Russell filed 13 November 2012 Ex EBR-11 p 95

[28] [2008] VSCA 217 at [184]

[29] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 87 ALJR 618; (2013) 297 ALR 225

[30] Minister for Immigration and Citizenship v Li per French CJ [2013] HCA 18 at [28]

[31] Ibid per Hayne, Kiefel and Bell JJ at [76]

[33] (1936) 55 CLR 499

[34] See T1-66/30 where Mr Russell compares the construction costs from point 1 to point 2 on Ex 5 (ie the private road) and says "if you were building from new" which is not the actual case at all. The point is also made at paragraph 6 of Mr Russell's affidavit filed by leave on 29 April 2014.

[35] Minister for Immigration and Citizenship v Li [2013] HCA 18 at [25] and citing Galligan, Discretionary Powers: A Legal Study of Official Discretion, (1986) at 140; Vernon v Vestry of St James, Westminster (1880) 49 LJ Ch 130 at 136

[36] [1909] VicLawRp 6; [1909] VLR 27 at p 51, 14 ALR 673 cited with approval in Arthur Yates & Co Pty Ltd v Vegetable Seeds Committee [1945] HCA 55; (1945) 72 CLR 37; [1945] ALR 474; (1945) 19 ALJR 276

[37] Cf. Sydney Municipal Council v Campbell [1925] AC 338 where the Privy Council considered all material circumstances including the discussions in Council

[38] Given the history of complaints this is a very dubious proposition. One solicitor wrote: "Our clients are made to feel in the role of the serf seeking permission to enter through the master's land" - letter from Colin Fleming & Co to the Council 19/10/90 (Affidavit EB Russell filed by leave 29 April 2014 Ex EBR-34 at p38)

[39] Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 31 ALR 666 at 689

[40] (1985) 4 NSWLR 139 at 155-156

[41] [2002] HCA 32; (2002) 210 CLR 222

[42] The Council cited the decision of Lindgren J in MLC Investments Ltd v FCT (2003) 205 ALR 226 at [92]-[93] which is a good example

[43] Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32; (2002) 210 CLR 222 at 234 [34] (Gleeson CJ) and 270-271 [151] (Callinan J)

[46] Judicial Review of Administrative Action (4th edn) Aronson Dyer and Groves at p262

[47] (2003) 211 CLR 441 at 458

[48] (1984) 57 ALR 365 at 387

[49] [2002] FCA 818; (2002) 126 FCR 467 at 471

[50] Amended Application for Statutory Order for Review para 2

[51] I have assumed that the reference to "road" here is to River Road but it may be to the private road - as the Council assumes in its submissions, in which case it is irrelevant what Council thought about the access the private road had previously provided

[52] Affidavit of EB Russell filed 13 November 2012 Ex ERB-7 at 30 and ERB-11 at 93

[54] Paragraph 35 supplementary submissions

[55] [2002] HCA 32; (2002) 210 CLR 222

[57] [1992] FCA 44; (1992) 34 FCR 212 at 220-221

[58] [2002] HCA 32; (2002) 210 CLR 222 at 240-241

[59] [2004] QSC 195

[60] [2002] HCA 32; (2002) 210 CLR 222 at 257-258

[62] Affidavit of EB Russell filed 13 November 2012 Ex ERB-11 p 94

[68] Whether that will be so once Council constructs the road it envisages will presumably depend, to a degree at least, on the standard of road constructed.

[69] That precise objection was made by the first applicant - see the affidavit EB Russell filed 13 November 2012 Ex EBR-20 p205 ground 5 and adopted by Mr Morris Pierce - see Ibid p276

[70] Affidavit EB Russell filed 13 November 2012 para 26-27

[71] See Mr Russell's analysis at para 111 to 117 of his affidavit filed 13 November 2102

[72] T1-39/28 - see the pink line from points 7 to 8 to 2 on Ex 5

[73] TV Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 70 ALR 147, per Wilcox J at 156.