Save Bell Park Group v Kennedy [2002] QSC 174

Central Queensland Community Legal Centre Inc for the Applicant.

[1] The Save Bell Park Group wishes to set aside a number of decisions of the delegate of the Minister for Natural Resources and Mines pursuant to the provisions of the Judicial Review Act 1991. The decisions were made on 21 December 2001. They are contained in a document entitled "Report on Investigation into Permanent Road Closure and Proposed Issue of a Term Lease to Keppel Community Care Association Inc" ("the Report"). The decisions were to:

A. Permanently close an area of road comprising part of Pattison Street, Emu Park, with an area of about 800 square metres in terms of s98 of the Land Act 1994;

B. Permanently close areas of road comprising part of Pattison Street, Emu Park, to the north and south of the Keppel Community Care site in terms of s98 of the Land Act 1994 to enable their inclusion in adjoining Bell Park, subject to the views of Livingstone Shire Council and the Department of Main Roads being favorable;

C. Seek the Minister's approval to amend part of R665 (Reserve for Recreation and Camping) to exclude Lots 92 and 98 LN1999 in terms of s33 of the Lands Act 1994;

D. Seek the Minister's approval to amend R666 (Reserve for Park and Recreation) to include Lots 92 and 98 LN1999, Lot 7 USL37120 and closed road being part of Pattison Street (subject to 2 above), in terms of s31 of the Land Act 1994;

E. Seek Governor in Council approval to issue Keppel Community Care Association Inc with a term lease in terms of ss15 and 121 of the Land Act 1994 for the purposes of a community services facility subject to conditions including a condition which would prohibit freeholding. The term of the lease was to be 40 years;

F. The applicant, all objectors and interested parties be advised concurrently in writing of these decisions.

[2] The applicant, Save Bell Park Group, is an unincorporated organization formed on 6 March 2001 in response to an application by Keppel Community Care Association Inc ("KCC") to the Livingstone Shire Council ("the council") and the department of Natural Resources and Mines to approve the allocation of land partly in Bell Park and partly on the unused portion of the Pattison Street road reserve ("the road reserve") for a proposed development.

[3] The applicant claims a membership of 41 Emu Park residents as at March 2002. Emu Park itself has a population as at the 1996 census of 2,253 people although, presumably, it would have grown somewhat since then.

[4] The applicant's objects as set out in rule 3 of its constitution include the following:

(i) "on behalf of the community, to act as guardian of Bell Park ... and environs [including Pattison Street road reserve] ... within the township of Emu Park by making the Queensland Government as custodian of state land within the State, the Queensland Department of Natural Resources and Mines as the department responsible for the administration of the Land Act 1994 and Livingstone Shire Council as trustee of Bell Park and reserve R665 for camping and recreation purposes publicly accountable for their collective stewardship of Bell Park and environs."

(ii) To protect, preserve and enhance the environmental, social, historic, cultural, open-space and recreational values and geographic integrity of Bell Park and environs as a community asset available to the present and unborn generations.

(iii) To be an outstanding community advocate for Bell Park and environs.

(iv) To oppose alienation of lands within Bell Park and environs through inconsistent development.

(v) To promote the inclusion of the lands at the periphery within Bell Park.

(vi) To enhance the civic amenity of the township of Emu Park."

[5] KCC is an incorporated charitable organization. It provides facilities and services for the aged on the Capricorn Coast and receives government funding for that purpose. It is said by the applicant to have 37 current members as at 20 September 2001.

[6] In March 2000, KCC applied for unspecified tenure over a portion of land included in the camping reserve. This was withdrawn and a second application made in relation to land partly in the camping reserve, partly in Bell Park and partly on the road reserve. This second application was lodged on 28 September 2000 but modified on 9 July 2001 so as to relate to land solely within the road reserve. The decisions objected to were in response to this application in its final form.

[7] The development in relation to which the road closure was sought mainly comprises administration offices, a meals on wheels kitchen, training facilities and day respite services for frail and disabled aged persons.

[8] Bell Park itself is a large area of land on the foreshore in central Emu Park set aside in 1908 for use as a botanical garden. Its formal entrance is from Hill Street on the southern edge and it is bounded in the west by Pattison Street. For many years it has served as a significant open space for major events in the township and until 1964 when the rail link to Rockhampton was closed it was a popular destination for groups for such events as Labour Day picnics. The Emu Park railway station was formerly on the corner of Hill and Pattison Streets and the track ran between Pattison Street and Bell Park.

The standing of the Applicant to bring the proceedings.

[9] A preliminary point was taken in relation to the applicant's standing to bring the proceeding. The respondent submitted that the applicant was not "a person aggrieved" because it was unable to show any grievance suffered as a result of the decisions beyond those of the ordinary members of the public.[1] An applicant must show it is affected over and above an ordinary member of the public by showing a special interest. The fact that a person might have a special interest in preservation of a particular environment that is a mere intellectual or emotional concern is insufficient.[2]

[10] Recent decisions suggest that a somewhat broader view is now being taken of what constitutes sufficient standing to support an application for judicial review than might hitherto have been thought to be the case. In North Queensland Conservation Council Inc v The Executive Director, Queensland Parks and Wildlife Service [2000] QSC 172, Chesterman J after analyzing a number of the authorities on the topic said at [12]:

"The rationale for limiting standing as explained by Gibbs CJ in Onus[3] suggests a solution to the problem. The plaintiff should have standing if it can be seen that his connection with the subject matter of the suit is such that it is not an abuse of process. If the plaintiff is not motivated by malice, is not a busy body or crank and the action will not put another citizen to great cost or inconvenience his standing should be sufficient. The difference in approach is that the former looks to the plaintiff's interest in bringing the suit. The latter looks to the effect of the proceedings on the defendant. One is, in a sense, the obverse of the other. If a plaintiff's interest is insufficient the proceedings will be abusive. It is, however, probably easier to identify a proceeding which is an abuse of process than to recognize a `special interest'. The distinction which must be drawn is between those who seek to prevent an abuse of process and those who seek to abuse the process itself."

[11] Features which his Honour observed in the North Queensland Conservation Case which ultimately led to his conclusion that the body had standing included evidence of government recognition, active involvement in issues concerning the subject matter of the decision, the early date of involvement and the expenditure of money on the cause. His Honour also noted the applicant's general involvement in environmental causes. In identifying these features of the applicant in that case his Honour was also at pains to point out the aridity of simply comparing one case with another to determine standing. This approach is, in my view, consistent with the approach of the High Court in Allan v Transurban City Link Limited (2001) 75 ALJR 1551 where at 1555 in para [15] the majority of the court said:

"The expression `affected by' and cognate terms appear in a range of laws of the Commonwealth. This is not the occasion for a disquisition on that topic. It is necessary to answer the questions posed above in respect of s119(1) of the Authority Act by reference to the subject, scope and purpose of that statute, rather than by the application of concepts derived from decisions under the general law respecting what has come to be known as `standing'. `Standing' is a metaphor to describe the interest required, apart from a cause of action as understood at common law, to obtain various common law, equitable and constitutional remedies"

[12] In support of its "standing" the Save Bell Park Group points to the following:

b. Publicity generated by the group increased the number of objectors to the proposal from 15 to over 350;

c. The respondent himself involved the applicant by requesting a meeting on 21 October 2001 and later convening a meeting between himself, representatives of the applicant and representatives of the council on 5 November 2001 to attempt to address the applicant's opposition;

d. It has been recognized by the council by the acceptance of its nominee on the steering committee for the Open Space and Recreation Plan for the Livingstone Shire Council and by the council's consultants attending a meeting of the applicant to ascertain its members views.

[13] I am satisfied that the applicant in this instance does have sufficient standing to bring this application. In North Queensland Conservation Council Inc v The Executive Director, Parks and Wildlife Service (supra) at para [35], Chesterman J summed up his approach with which I agree as follows:

"It is, I think, important that the proceedings ask for a judicial review of an administrative decision on the grounds that the decision maker had no right to grant the permit in question. The purpose of the proceedings is to test the lawfulness of the decision. They will not directly affect any legal rights or proprietary interests. It is true that the development will be delayed and to that extent the State as the developer, will be put out, but the delay should not be great and if the application succeeds the development, in its present form, should not proceed because public lands will have been unlawfully alienated. Another point of significance is that if the NQCC does not have standing to test the validity of the permit no one else will have, and the decision which may have been quite unlawful, will go uncorrected. Society has an interest in efficient government, but it has an equal interest in lawful government."

[14] The applicant, despite its short existence, appears on the evidence to be the recognized body in the Emu Park community involved in the preservation and protection of Bell Park and its surroundings. It is difficult to imagine any other group or individual having standing if the applicant is denied the right to pursue this matter. The applicant has, in my view, a genuine desire to test the validity of decisions affecting its area of specific community activity. It thus cannot in my view be said to have an interest which is merely intellectual or emotional as such interests are now understood nor is the proceeding an abuse of process. I therefore regard the applicant as possessing sufficient standing to bring these proceedings.

That procedures that were required by law to be observed in relation to the making of the decision were not observed (s20(2)(b)).

[15] The applicant submits that there are three general grounds by reason of which the decision is reviewable. The first is that the procedures that were required by law to be observed in relation to the making of the decision were not observed. On this ground the applicant submitted that the respondent failed to have regard to s108(1) of the Land Act 1994 in making the decision to close the road.

[16] Provisions relevant to road closure and subsequent alienation of the land are to be found in ss15, 16, 98, 101, 102 and 121 of the Land Act 1994. Before permanently closing a road the Minister has to be satisfied the road is not needed (s98(1)) and to be able to deal with the permanently closed road as unallocated State land the Minister has to be satisfied that the land is of adequate area to be used as a separate parcel of land having regard to the location of the land and the use made of adjoining land (s108(1)).

[17] It is true that the respondent makes no reference to s108(1) in his statement of reasons annexed to the application. Nonetheless this does not mean that the respondent in arriving at his determination has not considered whether the land is of adequate size for use as unallocated State land. The whole nature of the investigation carried out by the respondent was to determine in the light of the legislative framework and the objections received whether this particular parcel of land was suitable for a stand alone development as proposed by KCC abutting Bell Park. The decision itself necessarily reflects a determination that the land is adequate for use for that purpose and hence is adequate for being dealt with as unallocated State land. It follows that I am satisfied that no reviewable error is demonstrated by the failure to refer to s108 of the Act.

[18] The applicant also complains under s20(2)(b) of the Judicial Review Act 1991 that before alienating the land the respondent was required to evaluate the land to assess the most appropriate tenure and use for it taking into account State, regional and local planning strategies and the objects of the Land Act as set out in s4.[4]

[19] To lease unallocated State land without competition the Minister must decide the land is not needed for a public purpose, the intended use is the most appropriate use of the land and exposure to public competition is inappropriate.[5]

[20] The submission on behalf of the applicant is that the road is still needed to protect other land and no convenient alternative provision can be made for the protection of the other land. The land in need of protection in this case is, of course, Bell Park. This submission is based on Land Act Policy No PUX/901/237 and s98 of the Land Act.

[21] The issues raised in the submission are addressed in the statement of reasons and the Report. In particular, in the statement of reasons the respondent records that the development is unlikely to diminish the overall values of Bell Park. The basis of arriving at this conclusion can be found in the Report in the paragraphs preceding the conclusion which is reproduced in the formal statement of reasons. The question of a green corridor around the entrance to Bell Park was also specifically addressed in the report at (8) on page 14. I am not concerned on an application such as this with whether the conclusion is one with which I agree or disagree. I am only concerned with the process of arriving at the conclusion. In that regard I am satisfied that the respondent has considered those matters about which complaint is made before me and that the processes required to be observed have in fact been observed.

That the decision involved an error of law (whether or not the error appears on the record of the decision) (s20(2)(f)).

[22] The argument advanced under this heading was as follows. In the Report of 21 December 2001 the development purpose is variously described by the respondent as a "needed community service", a "community service" and "of a community nature".[6] The respondent records the principal activity of the developer as the provision of programmes and services that "enhance the physical, social and mental well-being of the community." However socially beneficial the activities of KCC may be it is submitted that they do not amount to a community purpose under s4 and Schedule 1 of the Land Act. In contrast the areas abutting the contentious site to the north and south are to be closed also and included in Bell Park. The submission concludes that the decision to grant a lease to KCC for "community purposes" is an error of law because the operation of the community purposes principle in s4 requires that the land be managed for the benefit of the people of Queensland and retained for the community in a way that protects and facilitates the community purpose. The presence of a commercial office next to the community purpose park and recreation land is submitted to be inconsistent with this principle and amounts to an error of law.

[23] Section 4 contains the over riding "motherhood" principles governing the administration of land to which the Land Act applies. "Community Purpose" is only one of a number of considerations specified. Among the other considerations are "Development" and "Sustainability". These considerations do not prevent the alienation or lease of State land but provide a checklist of matters to be considered before such alienation or lease occurs. For example, State land should not be alienated if it is needed for a "community purpose". If regard is had to Schedule 1 of the Act in which a list matters encompassed within the expression "Community Purposes" is to be found it is plain that the proposed development of this land by KCC is not a "Community Purpose". I do not consider that the respondent has treated it as such. The use of the expressions "community" or "community purpose" and the like as contained in the Report and the statement of reasons to which I have been referred are not intended to be read in the technical sense. They are references to the nature of KCC's activities in the way those activities would ordinarily be referred to. It is apparent that the respondent has taken into account "Community Purpose" in the technical sense by the discussion of Land Planning Issues in section 4 of the report and reasons 2, 3 and 4 of the statement of reasons.

[24] I am satisfied that the respondent has not made any relevant error of law in this instance. Again, I am not concerned under this head with the merits of the determination of whether the land is required for the "community purpose" of inclusion in Bell Park.

That the making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made in that it was an exercise of a discretionary power without regard to the merits of the particular case (ss20(2)(e) and 23(f)).

[25] The applicant submits that the policy was that the Department in conjunction with council would facilitate the location of a new community services center at Emu Park in close proximity to the town center intended to provide services to aged and disabled persons residing in the community. Because of a lack of suitable unallocated State land in close proximity to the town center and the respondent's understanding that the developer could not afford the cost of purchasing private freehold land in the town center, the policy was refined to selection of a site within or adjacent to Bell Park. The respondent is submitted to have exercised his discretionary power without regard to the merits of the case in that:

a. "The present application is the last of three attempts to provide a development site for the developer.

b. The respondent has passively accepted the selection of a site by the developer and council.

c. The respondent has rejected the State Valuation Service report recommending that the permanent road closure and the issue of a lease not proceed due to concerns about the location of the site adjoining Bell Park and the removal of Parkland in the second proposal and did not request a further report for the present application.

d. The respondent failed to undertake an objective site analysis and impact assessment of the development site preferring to rely on the material change of use process under the transitional planning scheme within the framework of the Integrated Planning Act 1997 (Q).

e. [The respondent] reached a decision to split the use of the area of closed road between purposes for a commercial office building and park and recreation purposes when there was no intrinsic difference in the location or quality of the land comprising the development site. The respondent has endorsed conflicting land uses in the one parcel of closed road as the "most appropriate use".

f. The respondent's decision to permanently close the areas to the north and south of the development site lacked finality being made subject to the views of the Livingstone Shire Council and the Department of Main Roads.

g. The respondent's decision of 21 December 2001 as contained in the report on investigation into permanent road closure and proposed issue of a term lease to the developer was purportedly varied by the respondent by January 2002 in communicating the decision to the applicant to reduce the developer's lease term from 50 to 40 years and to reduce the area of the southern portion of land to be included in Bell Park."

[26] An examination of some of the grounds set out above suggest that what is really sought here is a review of the merits of the decision. I do not have the power to embark on such an exercise even were I minded to do so. The argument advanced under the heading of exercising a discretion without regard to the merits of the particular case can be met by the finding that there is no evidence of the existence of any policy of the type alleged. Neither would I be prepared to infer any such policy from the grounds relied on or any combination of them. Having considered the statement of reasons and the Report I am satisfied that the decisions reached were reached after a careful consideration of the merits of the particular matter and a review of all of the multiplicity of competing submissions advanced by way of objection. I am satisfied that the decision arrived at was one properly open to the decision-maker on the material he took into account. There is thus no substance in this ground of complaint.

[27] Despite my rejection of the ground as argued there are some matters that should be separately dealt with lest it be thought they should have founded separate grounds for complaint.

[28] I do not consider the decision to divide the road reserve into separate uses was one that was not open to the decision-maker. The applications before him were to close the road and to grant alienation or a lease of a portion of it to KCC. The decision to include the balance land not sought by KCC in Bell Park was justified by the respondent as addressing the objectors' concern that use of the land in the manner KCC sought would create a precedent for use of the balance of the road reserve and reduce access to the park or caravan park. The decision attempted to meet those objections by including the balance land in the park and thus precluding its use for other purposes and ensuring permanent access from Pattison Street. The alternative was to leave the balance of the road reserve as unallocated State land with the future risk of unsympathetic use. Having determined KCC's application for allocation of a portion of the land in its favour I am not satisfied that it was not open to the respondent to deal with the balance of the land consistently with the provisions of the Land Act. It is not submitted that including the land in the park was inconsistent with those provisions.

[29] The decision made as recorded in the report was to lease the land for 50 years. Between the making of the decision and the statement of reasons that decision apparently changed to reduce the lease to 40 years. It seems to me that there may have been a second decision in the intervening period regarding the term of the lease which was not the subject of the application. I do not express any view on whether that application would be separately reviewable but I would not consider that any such review would affect the earlier decisions to close the road or lease a portion of the land to KCC. The unexplained change in date does not have any impact on the validity of the decisions made previously.

[30] It follows from the forgoing that the application for judicial review should be dismissed.

[31] There were two interlocutory applications before me relating to dismissal of the primary application for want of standing and for a stay. Both interlocutory applications are rendered obsolete by the fact that this matter proceeded as one for final relief in the first instance. I do not propose to deal further with them.

[32] The applicant has applied for a costs order pursuant to s 49(1)(e) of the Judicial Review Act 1991. The Court also retains a general discretion under s49(4) to award costs in accordance with UCPR rule 669. The particular circumstances of this case do not make the difference material. This is because the principal basis for an order other than costs following the event is the basis recognized in s49(2)(b), namely, the involvement of the public interest and the nature of the order sought which is in reality that there be no order as to costs which order is available under either the legislation or the rules[7].

[33] In addition to the public interest ground the applicant seeks to rely in part on a claimed lack of financial resources to pay costs. The respondent responds to the public interest ground by submitting that the members of the applicant are motivated by private interest. I can see little evidentiary support for either submission. The applicant is an unincorporated association. Its own funds are minimal. Its capacity to pay costs depends on the financial resources of its members or at least the members of the committee. There is no evidence as to what that capacity might be. At the same time I am satisfied that the proposal to close Pattison Street and build the KCC facility is a matter of considerable public interest in the Emu Park area. I have found that the applicant is the proper representative of that considerable body of the community that opposes the development. I am not satisfied that the motivation for that opposition is substantially self interest. I do not regard the application as frivolous despite my failure to be persuaded by the arguments advanced by the applicant. These are all relevant considerations under s49(2). In the end I have found that the public interest aspects of the matter are the most compelling taking into account that the respondent as the delegate of the relevant minister is in truth the government. In the circumstances an order that the applicant bear only its own costs is appropriate and consistent with the approach taken by the Court of Appeal in Anghel v Minister for Transport (No 2).[8]

[34] In the circumstances the orders will be that the application be dismissed with each party to bear his or its own costs of the application.

[1] Toohey Ltd v Minister for Business & Consumer Affairs [1981] FCA 121; (1981) 36 ALR 64 at 79 per Ellicott J

[2] Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493 at 530; Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27; Central Queensland Speleological Society Inc v Central Coast Cement Pty Ltd [1989] 2 Qd R 512; Friends of Castle Hill Association Inc v Queensland Heritage Council (1993) 81 LGER 346

[4] See Land Act ss15(1)(a), 16

[5] See Land Act s121(1)(b)

[6] Report on Investigation pages 18 and 24.

[7] Anghel v Minister for Transport (No 2) [1994] QCA 232; [1995] 2 Qd R 454

[8] ibid at 455, 460-461, 463. See also the discussion of the exercise of the costs discretion under the precursor to UCPR rule 689 in Cairns Port Authority v Albeitz [1995] 2 Qd R 470 at 475 (Thomas J).