The purpose of this paper is to evaluate the administrative law role of the Queensland Planning & Environment Court1 (P & E Court). Defining "Administrative Law" is a topic on which few commentators agree.2 For the purpose of this paper, I have used the term as the "body of general principles which govern the exercise of powers and discretions by public authorities"3 with the purpose of ensuring "that those responsible for decisions in the community do so in accordance with the law, fairly and reasonably".4
Originally, and for the first 25 years of its existence,5 the Court's jurisdiction was limited to performing a merits review or a hearing de novo. The focus of the Court's jurisdiction was hearing appeals in relation to decisions by local governments on development applications. During this period administrative law proceedings or specifically judicial review type proceedings could only be commenced in the Supreme Court.
However in 1991, on the commencement of the Local Government (Planning & Environment) Act 1990 the P&E Court's jurisdiction was expanded and the Court was entrusted, for the first time, with jurisdiction to make declarations and consequential orders.
At first there were some regrettable limitations on the Court's declaratory jurisdiction which was cured in 1998 on the commencement of the Integrated Planning Act 1997.
The legislature's faith in the Planning & Environment Court being entrusted with declaratory jurisdiction was reinforced by the exclusion of the Judicial Review Act 1991 and the making of the Planning & Environment Court's jurisdiction exclusive.
The Court performs an important function, mainly to adjudicate on disputes arising from decisions of local governments or government departments or agencies relating to development applications and approvals. Further the Court has jurisdiction under a number of Acts that cover a range of environmental matters, including heritage, vegetation management and coastal and environmental protection. The matters considered by the Court often have far reaching effects on communities, land owners, developers, action groups and governments.
This paper will identify the policy objectives behind the introduction and subsequent expansion of the Court's declaratory jurisdiction and evaluate the Court's performance against these policy objectives.
The History of the Planning & Environment Court (P&E Court)
The P&E Court (originally called the Local Government Court) was established by section 27 of the City of Brisbane Town Planning Act 1964 (the 1964 Brisbane Planning Act).
The creation of the P&E Court was related to the coming into force of the first town plan for the City of Brisbane on 16 December 1965. The Court commenced sitting in 1966.6
As a creature of statute, the P&E Court's jurisdiction was to be found within the confines of the statute.7 Originally, the Court's jurisdiction was to act as the appellant body in respect of Local Government planning decisions.8 Essentially all appeals were based upon an initial application to a Local Government for its approval of a proposal.
Section 28 of the 1964 Planning Act provided that:
- the Court "shall hear and determine all matters which by this Act or any other Act are required to be heard and determined by the Court, including every appeal which under this Act may be made to the Court";
- the jurisdiction of the Court was "exclusive and every decision shall be final and conclusive ...".
An appeal to the Court is a fresh hearing or a hearing de novo.9 The appeal is determined in accordance with the evidence placed before it and not on the material placed before the Council and the Court substitutes its own decision for the decision of the Council. 10 In Scurr 11 Steven J described the role of the Local Government Court as follows:
"it is clear that no appeal in any conventional sense is involved, the procedure is sui generis since what the Court does, although described as the determination of an appeal, is to take the application and objections in hand, consider them de novo, hear for the first time the objectors and arrive at its own conclusion, ...."
It followed that the real issue was whether the application to the local planning authority should be approved or disapproved by the Court.12 This was expressed by the Queensland Full Court in Walker v Noosa Shire Council13 as follows:
"The real issue in this appeal is whether the application should be approved or disapproved, not whether the Council's decision was correct or not."
Originally the Local Government Court had no judicial review role.14 Fogg15 described the jurisdictional limitation of the Court in the following way:
"The Local Government Court has no jurisdiction to quash the authority's decision, to declare its invalidity, or to require the application to be reconsidered by the Local Planning Authority; its function is to determine the appropriate planning or subdivisional application at a de novo hearing."
The judicial review functions belonged exclusively to the Supreme Court in the exercise of its inherent or supervisory jurisdiction. This meant that issues concerning a planning application could be the subject of proceedings in both the then Local Government Court and the Supreme Court at the same time. These circumstances occurred in R v Brisbane City Council; Ex parte Read (1985). Briefly the facts in this case were –
- the developer applied to Brisbane City Council to rezone land at Ferny Grove in Brisbane for an extension to an existing quarry;
- Brisbane City Council's indicated opposition to the application;
- however that opposition evaporated after negotiations between the developer and the Council lead to an agreement whichprovided for –
- the developer withdrawing a claim for $1.3 million for the resumption by Brisbane City Council of part of the quarry;
- the exchange of land, including the transfer to Brisbane City Council of a gravel plant on the south bank of the Brisbane River,to enable Council to proceed with the beautification of the south bank of the river;
- Council returning the resumed land and to rezoning the land at Ferny Grove to permit the quarry expansion;
- Brisbane City Council subsequently resolved to approve the rezoning application for the quarry extension and thereupon objector's appealed to the Local Government Court against the decision of the Council;
- the objectors became aware of the "agreement" between the Council and the developer during the discovery process under the Local Government Court appeal and sought the issue of writs of certiorari and mandamus against the Council, on the basis that by the "agreement" the Council had precluded the giving of proper consideration of the statutory rezoning assessment process, including the merits and/or demerits of the application and the views of the objectors;
- The Full Court unanimously decided that Brisbane City Council's rezoning approval was given on the basis of extraneous and irrelevant matters and without proper consideration of the objections. Council's decision was quashed and the application was sent back to the Council to re-decide the application according to law.
Thomas J17 made the following observations which distinguished the role of the Local Government Court on a merits review and the Supreme Court exercising its administrative law or supervisory role.
"The powers given to the Local Government Court do not include the power to grant prerogative remedies or their equivalent. It is true that in the course of reaching a decision the Local Government Court may examine the question whether a council's decision was bona fide, and may conclude that it was reached pursuant to extraneous considerations. But such conclusions are incidental to a determination de novo on the merits and they do not involve exercise of the prerogative powers. The duty of the Local Government Court on such an appeal is to decide whether the application should be approved or disapproved. It is not an exercise to review the correctness of the Council decision: Walker v Noosa Shire Council. Thus the Local Government Court may have before it evidence indicating that a local authority's decision was improper and void but be bound to give the same decision because it coincidently happened to be correct. This exemplifies the fact that the issues entrusted to the Local Government Court are quite distinct from the prerogative remedies exercised by this Court."
"It [the Local Government Court] is a court of merits which decides the ultimate question de novo. On the other hand the Supreme Court in proceedings such as the present is concerned to see whether statutory procedures have been fairly and properly followed, including the requirement that objections be actually considered. In this sense the court's function is one of wider public importance and is concerned with the preservation of fair play and the avoidance of "mischievous practices".
The expansion of the P&E Court's jurisdiction
By the late 1980s, momentum for planning reform was growing in Queensland.18 This reform process commenced in October 1986 with the issue of a Green Paper and was followed by a Working Paper in November 1988. There was little or no debate about the jurisdiction of the Court, rather the debate centred around the question as to whether the Court should be replaced by a Tribunal.19 The Court was retained although with a new name.
However, the legal profession did voice support for the expansion of the Court's jurisdiction. Mr Haydon of Counsel argued20 for the expansion:
"With the increasing complexity of town planning law, it is necessary to consider giving increased jurisdiction to the Local Government Court so that all matters relating to the public interest in town planning can be dealt with in the one court. For example, jurisdiction to make declarations where disputes exist followed by power to grant mandatory and restrictive injunctions would be advantageous adjuncts to the Court's jurisdiction. Because of the infrequency with which individual judges of the Supreme Court and individual magistrates have to deal with matters relating to town planning there are difficulties in those judicial officers keeping abreast with modern town planning requirements. However, the Local Government Court has regular and frequent contact with matters relating to town planning.
The future will place increasing demands upon local authorities to quickly and effectively enforce their own Town Planning Schemes. As enforcement affects the rights and obligations of individuals and companies as well as the local authority and the public generally, it is appropriate for enforcement proceedings to be dealt with expeditiously."
The Local Government (Planning and Environment) Act 1990 which came into force in April 1991, introduced a new town planning framework in Queensland.21 The Local Government Court was renamed the Planning and Environment Court and its jurisdiction was expanded to include, for the first time, a declaratory power.
Any person could bring proceedings in the Court for a declaration in respect of any question of construction arising under a planning scheme, or any act, matter or thing to be undertaken in respect of the planning scheme or the use of land or for an order to remedy or restrain the commission of an offence.22
Surprisingly this expansion of the Court's jurisdiction was accompanied by very little fanfare or acknowledgement. Some modest mention in the second reading speech23 was made -
"The Local Government Court has been renamed as the Planning and Environment Court and will be empowered to make declarations and orders to remedy or restrain an offence against the planning scheme. Furthermore, any person, including a local authority, may bring such proceedings to this Court."
However, no explanation or justification for the expansion of the Court's jurisdiction was offered. However, the significance of this new power was recognised by Judge Row (who was, at that time, the senior Planning & Environment Court Judge). Judge Row wrote:24
"The Planning and Environment Court is given significant powers in relation to actions for declarations and/or injunctions. The significance of these provisions is that a new remedy is created by the P&E Act. The person pursuing that remedy is not bound to be an applicant or objector to an application. Nor is the person restricted by showing special damages according to the restrictions previously imposed by Boyce v Paddington Borough Council (1903) 1 Ch. 109 at 134. The section recognises the recent trend towards more frequently recognising plaintiffs or applicants having Locos Standi no matter what it is that moves them to have the Court decide a question of law. It is more rational now to ask when a plaintiff or an applicant raises a question whether the respondent is in breach of a law."
The importance of these "key new provisions" were also recognised by Senior Counsel, namely Danny Gore QC and Susan Kiefel QC (now Justice Kiefel).25
However, this original expansion of the Court's jurisdiction was problematic as the Court found that section 2.24 (Declarations and Orders) had some regrettable limits to its jurisdiction.26 The primary difficulty with this provision arose from the phrase "any act, matter or thing to be undertaken". The Court took the view that the phrase "to be undertaken" connoted futurity and accordingly applications for declarations with respect to the validity of past approvals were found by the Planning & Environment Court to be outside its jurisdiction.27 This conclusion did not necessarily deprive the applicant of a remedy, as the Supreme Court retained its inherent jurisdiction, as was pointed out by the Court of Appeal in CSR Ltd v Pine Rivers Shire Council.28
Perhaps the lack of fanfare for the expanded jurisdiction of the P&E Court related to the difficulties associated with the language in section 2.24 and the fact that on many occasions the P&E Court found that it had no jurisdiction to entertain applications for a declaration.
The Local Government (Planning and Environment) Act 1990 had a short life and was replaced in 1998 by the Integrated Planning Act 1997 (IPA) which involved extensive reform of the State's planning law.29 Under IPA, the Court's declaratory powers were given added importance by firstly the removal of the restrictions existing under the Local Government (Planning and Environment) Act 1990 and by the exclusion of the operation of the Judicial Review Act 1991.30 The Explanatory notes31 to IPA provided some explanation for the further expansion of the Court's jurisdiction:-
"Clause 5.8.4 provides that the Judicial Review Act 1991 does not apply to decision making under the Bill, and in particular, that the Supreme Court does not have jurisdiction to hear and determine applications made to it under part 3, 4 or 5 of the Judicial Review Act 1991 (dealing with statutory orders of review, reasons for decisions, and prerogative orders and injunctions respectively).
These comprehensive appeal, declarations and orders powers are, for the matters they cover, intended to provide a complete alternative to judicial review under the Judicial Review Act 1991. The Planning and Environment Court is a specialist jurisdiction with expertise in planning and development, assessment matters, and can consequently deal with declaratory proceedings concerning these matters more efficiently than the Supreme Court could deal with them under the Judicial Review Act, without sacrificing the quality of decision making.
This clause does not curtail the rights of persons to have administrative decisions reviewed judicially. In fact, by expanding the declaratory jurisdiction of the Planning and Environment Court, persons seeking a review of administrative decisions under the Bill have been given greater access to a cost effective, specialist jurisdiction."
Under, IPA,32 the Court's declaratory powers were expanded to remove the declaratory limitations which existed under the Local Government (Planning & Environment) Act 1990.33 The declaratory powers under IPA are now regarded as significant,34 wide and flexible.35
However, this "trip down memory lane" does not end there. The IPA was replaced in 2009 by the Sustainable Planning Act 2009 (SPA). The SPA carried forward much of the IPA structure and content and was said to be an "evolution not a revolution of the planning law".36
Under SPA, any person may bring proceedings in the P&E Court for a declaration about a matter done, to be done or that should have been done under SPA except in the limited case of ministerial call-ins and directions about a development.37
The jurisdiction under the Judicial Review Act 1991 continued to be ousted.38 The SPA explanatory notes39 reinforces the view that:
- SPA provides extensive declaration and order powers to the P&E Court which gives the same rights of review under the Judicial Review Act;
- the P&E Court is an expert jurisdiction that can deal with the review of applications expeditiously, as it is familiar with the planning and development assessment system; and
- the general public has the ability to seek review of administrative decisions, by allowing such reviews to occur in an accessible expert jurisdiction.
Nature of declaratory proceedings
An application to the Court for a declaration is not an appeal or hearing anew. Rather, the declaratory proceedings require the Court to look at the effectiveness or otherwise of the decision making process.40 In Eschenko v Cummins41 the Court described its declaratory jurisdiction in the following way-
- Proceedings with respect to relief under the declaratory powers are analogous to judicial review proceeding. The court is not directly concerned with the merits of the approval, but rather must consider whether the approval was validly given.
- The onus of establishing invalidity rests with the applicant.
- It is not open to the Court to substitute its own opinion for that of the Council unless the Council approval is shown to have been (in that case) unjustifiable, based on irrelevant considerations or one that no reasonable council could have granted.
In Di Marco v Brisbane City Council42, the P&E Court described the nature of declaratory proceedings in the following terms:
"The function of the Court in proceedings which seek declaratory relief of this nature are similar to proceedings involving judicial review. The consequence is that the Court does not embark on a consideration of the merits of the development approval, but rather, is confined to considering whether on administrative law grounds, the decision is legally flawed."43
The P&E Court is empowered to make an order about a declaration made by the Court.44 As declaratory proceedings are an administrative law type remedy, it follows that the relief which it may bring involves the court exercising a wide discretion. In Mudie v Gainriver Pty Ltd,45 the Court emphasised the need to balance the public interest in compliance with the law and the private inconvenience and loss that may result from strictly enforcing it via a declaration.46
An analysis of the Policy Objectives behind the Court's declaratory or supervisory law role
The P&E Court is a specialist court, constituted by District Court judges notified by government gazette. Originally, the Court was not entrusted with declaratory powers. That changed in 1991 and was further expanded and reinforced in 1998 and 2009 on the commencement of IPA and SPA respectively. The administrative law role of the P&E Court has been further enhanced by the exclusion of the Judicial Review Act47 and the jurisdiction of the Court being made exclusive.48
The legislature has placed great faith in the Court and has expressed the view that the Act "enhances the ability to seek review of administrative decisions, particularly for the general public, by allowing such reviews to occur in an accessible expert jurisdiction".49 In summary the policy objectives sought to be achieved in expanding the Jurisdiction of the P&E Court are as follows:-
- accessibility – that is, proceedings can be brought by "any person" without any time limit constraint and with little risk of any adverse cost orders;
- experience – the P&E Court is a specialist jurisdiction which has "exclusive" jurisdiction to hear appeals and applications for declarations in relation to the planning and development system which is generally regarded as complex;50
- efficiency – the Court can deal with proceedings expeditiously and more efficiently than the Supreme Court and is regarded as a "user-friendly" forum;
- convenience - it is both sensible and convenient for the one specialist court to be able to deal with merits appeals and also exercise a supervisory jurisdiction.
These underlying policy objectives will be considered and evaluated:
(1) Accessibility/Open standing - the P&E Court has jurisdiction to hear applications for a declaration by "any person". Further, proceedings may be brought on behalf of a person.51 Judge Row, in 1992, noted:52
"The section recognises the recent trend towards more frequently recognising plaintiffs or applicants having locus standi no matter what it is that moves them to have the Court decide a question of law. It is more rational now to ask when a plaintiff or an applicant raises a question whether the respondent is in breach of a law. Whether the respondent is in breach of a law is more important than whether the plaintiff or applicant should be allowed to ask the Court to answer the question relative to the breach."
In comparison, rights under the Judicial Review Act are not as liberal.53 For example, a person may bring an application for a statutory order of review54 but only if that person is "aggrieved by a decision".55 Rayjon Properties v Department of Housing, Local Government and Planning (Qld)56 is an example of where the Court denied standing to a shopping centre owner to challenge a decision exonerating a rival shopping centre from having to commission an environmental impact study regarding its expansion proposal.57
It is common for competitors, objectors, neighbours, action groups and councils to bring proceedings in the P&E Court for declarations.
However, if the applicant neither represents the community nor demonstrates any other direct interest in the outcome, the Court has a wide discretion to grant or refuse the relief sought and may find it more difficult to obtain orders than would a council or a person with a legally recognised interest in the outcome.59
(2) Accessibility/Costs – The P&E Court has a limited power to award costs. Generally, each party to proceedings in the P&E Court must bear their own costs for the proceedings.60 However, the P&E Court does have limited power to award costs, for example, if the proceeding was instituted primarily to delay or obstruct61 or if the Court considers that the proceeding was frivolous or vexatious.62
It seems clear that the legislature intended that any person could bring declaratory proceedings in the P&E Court without the threat of a crippling costs award against them.63 This provision also recognises the public interest character of some applications to the P&E Court. For these reasons, there is an understandable judicial reluctance to find proceedings brought by citizens to be frivolous or vexatious or to be instituted to delay or obstruct as reflected in the views of the Court of Appeal in Mudie v Gainriver –
"It seems likely that one purpose of s.7.6(1) of the Act, which sets out the general rule that each of the parties bear their own costs, consistent with the objectives of the Act, is to ensure that citizens are not discouraged from appealing or applying to the Planning and Environment court because of fear that a crippling costs order might be made against them. The provision no doubt also recognises the public interest character of some applications to the Planning and Environment Court."64
By comparison, proceedings in the Supreme Court or under the Judicial Review Act potentially expose the applicant to an adverse court order with costs generally following the event.65
(3) Accessibility/Time limits – Applications under the Judicial Review Act are subject to time limits.66 SPA does not impose any time limits in bringing proceedings and arguably allows greater scope for applicants to bring proceedings in relation to administrative decisions made some months or even years before. However, the delay in bringing proceedings may be a factor against the Court exercising its discretion as to whether to make the orders sought.67
(4) Experience – In 2011, the P&E Court celebrated its 45th anniversary, making it the oldest court of its type in Australia.68 Fifteen of the 38 Queensland District Court judges have been commissioned as P&E Court judges and are based in Brisbane, Cairns, Townsville, Rockhampton, Maroochydore and Southport. However, the P&E Court may sit anywhere in Queensland and has, on appropriate occasions, sat in some towns and communities which do not have a courthouse.
Some P&E Court judges are drawn from what might loosely be called the "Planning and Environment Court bar" and accordingly come to the Court with extensive experience acting for parties before the Court but an equal number of Judges start with little or no Planning and Environment law experience and bring other broader expertise to the court. Further, the P&E Court judges are not excluded from conducting District Court civil and criminal law business when not sitting as Planning and Environment Court judges.
It follows that the P&E Court judges bring considerable experience to the P&E Court jurisdiction but, because of their broader District Court role, are not isolated from "different thinking";
(5) Expeditious and efficient service – The P&E Court is recognised for its achievement in providing a "user-friendly", accessible and efficient Court service.69
In 2010, the Court was recognised70 for its achievements and in the 2010-2011 District Court Annual Report, it was reported:
"Noting the efficiency of its unique structure as an adjunct of the District Court, an authoritative and comprehensive survey of worldwide environmentalist courts and tribunals71 found that this court is a world leader in individual case management. The survey emphasised especially the problem solving approach of the Planning and Environment Court judges; the court's alternative dispute resolution process; its efficient case management and management of expert evidence; its regional service and the commitment of its judges to ongoing review and reform."
The Court has placed increasing emphasis on dispute resolution and accordingly, the Court offers a free ADR service which is recognised internationally as providing ADR access to justice, with 90 per cent of the cases being finalised without proceeding to a full hearing. The Court requires parties to have a dispute resolution plan which will include a mediation before the Court's ADR Registrar, who is a senior and experienced planning and environment lawyer who has been appointed to provide a free dispute resolution service to parties72. This service is proving to be very successful.
Further, the Court conducts active supervision and case management by the judges through directions hearings and regular case reviews. Case management is applied in a way which encourages dispute resolution through a problem solving approach and the furtherance of the stated purposes of the Planning and Environment Court Rules 2010 namely:
- "The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in proceedings and a minimum of expense.
- Accordingly, these rules are to be applied by the Court with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules;
- In a proceeding in the Court, a party impliedly undertakes to the Court and to the other parties to proceed in an expeditious way."
The Court's clearance rate in 2010-2011 was 124 per cent, ending the year with 676 outstanding cases and having disposed of 793 cases.
Further, the Court is the only court in Queensland where files are open to inspection by any member of the public through eFiles, an online service.
The Court is recognised as a successful and visionary institution. From time to time, there are calls for change, for example, the constitution of a tribunal or similar forum in lieu of the Court, but the success of the Court and its judges has meant that those calls have failed.
The P&E Court provides access and service to members of the public in a cost effective and efficient way. It is a "user-friendly" court, which encourages and allows self-represented litigants.
(6) Convenience – It is sensible for the one specialist court to be entrusted with the "full gamut" of jurisdiction to deal with all matters arising from the one development application, to avoid having two courts considering matters arising from the one matter. It is not unusual for the P&E Court to be required to consider an application for a declaration arising from a merits appeal. It is obviously sensible for the one court to deal with both matters.
The analysis supports the view that the policy objectives are being satisfied by the P&E Court.
Ouster of the Jurisdiction of the Supreme Court
The jurisdiction given to the P&E Court under SPA "is exclusive".73 There has been some debate over the years whether the Supreme Court's jurisdiction to grant a declaration relating to a planning or environment matter has been ousted.74 This debate seems to have now been resolved by the Court of Appeal in Netstar Pty Ltd v Caloundra City Council.75 The Court of Appeal held that the jurisdiction of the P&E Court is exclusive once proceedings for a declaration have been commenced in the P&E Court. However, where the parties consider a declaration, which could also be brought in the P&E Court, is most conveniently and sensibly determined in the Supreme Court, then the Supreme Court will have jurisdiction.
In Netstar the parties were contesting the validity of an Order in Council made in 1984 in relation to a townhouse development. The applicant brought proceedings in the Supreme Court for a declaration and the Council brought proceedings in the P&E Court for a declaration. The applicant then brought new proceedings in the Supreme Court for a declaration that the P&E Court did not have jurisdiction.
McMurdo P76 noted the presumption that the Supreme Court has jurisdiction over any and every justiciable matter within its territorial limits and said77 -
"Once a person brings an application under s.4.1.21(1), the Planning &Environment Court has exclusive jurisdiction because of s.4.1.21(5) and s.4.1.2(2). Nothing in IPA excludes a person from bringing an application in the Supreme Court which could have been made under s.4.1.21(1), if no like application has been brought in the Planning & Environment Court. This means that where all parties consider a declaration which could also be brought in the Planning & Environment Court is most conveniently and sensibly determined in the Supreme Court, then the Supreme Court will have jurisdiction. The jurisdiction conferred by s.4.1.21 IPA is specific and limited and will be strictly construed so as to minimise its impingement on the wide jurisdiction of the Supreme Court of Queensland: Bathurst City Council v Saban, 1985, NSWLR 704,709. The clear combined effect of the wording of s. 4.1.2(2) and s. 4.1.21(1) and (5) is that, because the Council has brought an application for a declaration about the lawfulness of land use or development, the Planning & Environment Court has exclusive jurisdiction to hear that application."
The outcome from the Netstar decision seems to be that the Supreme Court retains is supervisory jurisdiction unless proceedings are first instituted in the P&E Court.
The Supreme Court also has jurisdiction -
- where proceedings seek to examine matters outside the jurisdiction of the P&E Court. For example in Cairns City Council v Fairway Farming78 the Supreme Court held that it was entitled to hear an action against the council for money had and received. The money had been paid by the plaintiff to the Council in compliance with a condition requiring a contribution towards the cost of water supply and sewerage headworks. The action was based on an allegation that the condition was not lawfully imposed.
- where a declaration is sought in relation to a ministerial call-in or ministerial direction.79 The Minister has power under Chapter 6, part 11 of SPA to call in an application if the development involves a state interest. The call-in has serious consequences especially the removal of the right of appeal on the merits. The jurisdiction of the P&E Court is excluded except where proceedings are brought by an assessment manager in certain limited circumstances.80 The following two cases illustrate this examples-
- Emerald Developments (Aust.) Pty Ltd v Minister for Environment, Local Government, Planning and Women81 where the Supreme Court declared that the decision of the Minister to refuse the called-in application was unlawful and of no effect because the Minister determined the matter by reference to statutorily irrelevant considerations and fell into jurisdictional error which invalidated the decision and rendered it unlawful.82
- Landel Pty Ltd v Minister for Infrastructure and Planning83 where the Supreme Court declared that the decision of the Minister to call-in the application was unlawful and of no effect because the call-in was in breach of the rules of procedural fairness.
While the supervisory jurisdiction of the Supreme Court has not been ousted it is very rare for declaratory law type proceedings to be commenced in the Supreme Court rather than the P&E Court except where the P&E Court does not have jurisdiction. This fact is evidence of the preference of practitioners to use the supervisory jurisdiction of the P&E Court. This support for the specialist P&E Court was also provided by McMurdo P. in Netstar84 in ordering that the matter in dispute between the parties be determined by the "specialist Planning and Environment Court" rather than the Supreme Court.
Use of the declaratory jurisdiction
Over the years, the Court's declaratory jurisdiction has received an extensive "workout" and, for illustrative purposes to demonstrate the usefulness of this jurisdiction, the following examples are mentioned:
- Westfield Management v Brisbane City Council85 – An application by a competitor for a declaration that a code assessable development application should be refused and that the Council's approval should be set aside. The Court held that the decision should be set aside and the matter should be remitted to the Court to be dealt with according to law;
- Heatherton Shire Council v Vance86 – This was an application for a declaration by the Court that the respondent's use of their land was unlawful;
- Sherringham Holdings v Maroochy Shire Council87 – An application for a declaration as to whether certain proposed uses were code or impact assessable;
- Kangaroo Point Residents' Association v Brisbane City Council88 – An application by an action group for a declaration that the Council, as the assessment manager, had improperly exercised a power. The exercise of the power required the Council to form an opinion as to whether a certain circumstance existed. The Court held that the Council had not fallen into error of law which provided a basis for setting aside the opinion.
The Queensland Planning & Environment Court is a specialist court which is the oldest of its type in Australia.
Queensland Planning & Environment disputes often involve very substantial commercial, community and political issues. The Court is highly regarded as an efficient, effective and transparent judicial body. While the Court is often required to decide issues of some controversy, its decisions are always well respected and have been the subject of very little public controversy or outcry.
The Court's identity, jurisdiction and practices have evolved over time. Indeed, the Court's achievements have been recognised internationally as a world leader in individual case management.
Consistent with the growth in the Court's standing, its jurisdiction has been expanded in recent years to provide it with a supervisory or judicial review jurisdiction. This role was enhanced by the exclusion of the Judicial Review Act. The primary policy objective behind the expansion of the Court's jurisdiction was to allow the general public to have access to an accessible expert court for the review of planning and environment decision makers on judicial review type grounds.
While the jurisdiction of the Supreme Court has not been ousted, it is rare for proceedings to be commenced in the Supreme Court except where the Planning & Environment Court lacks jurisdiction. The reasons for this are many, but essentially because the P&E Court is well regarded, accessible, experienced and efficient.
The expansion of the P&E Courts jurisdiction has been a resounding success.
1The Court, was created by the City of
Brisbane Town Planning Act 1964, and was originally called the
Local Government Court. The Local Government Court was renamed the
Planning and Environment Court pursuant to section 7.3 of the
Local Government (Planning & Environment) Act
2M. Aronson, B. Dwyer, M. Groves "Judicial Review of Administrative Action", (Law Book Co. 2009)1.
3H. Wade and C. Forsyth "Administrative Law", 9th Edition, (OUP, 2004) 4.
4R. Cooke "The Struggle for Simplicity in Administrative Law", 1986, page 5.
51966 to April 1991 (when the Local Government (Planning & Environment) Act 1990 commenced.
6D. Gore (2000) "Understanding the Planning & Environment Court", QELA Seminar November 2000, page 2. The Court's first judge (His Honour Judge Byth) was appointed from 20 January 1966, Queensland Government Gazette 20/1/1966
7Judge K Row (1982) "Land Development Controls – Application to Appeal", Bar Association paper, page 42.
8Section 28 City of Brisbane Town Planning Act 1964 (repealed).
9Scurr v Brisbane City Council [No. 5] 28 LGRA 50.
10Wilson v Hervey Bay Shire Council 36 LGERA 329.
11Scurr v Brisbane City Council [No. 5] 28 LGRA 50 at page 62.
12Fogg (1987) "Land Development Law in Queensland" (The Law Book Company Limited) at page 99.
1350 LGERA 155 at 156-7.
14Sterling v Woongarra Shire Council 1982 QPLR 412; R v Brisbane City Council; Ex parte Read 57 LGERA 1.
15A Fogg (1987) "Land Development Law in Queensland", The Law Book Company Limited, at 136.
1657 LGERA 1.
1755 LGERA at pp 19 and 22.
18A. Fogg "Environmental Planning Queensland" 1990 (March) EPLJ 36; A. Fogg "Environmental Planning Queensland" 1990 (December) EPLJ 318; A. Fogg "Reform of Planning Law" 1989 QELA Law Conference, Airlie Beach.
19Queensland Labour Party policy at the time favoured a Tribunal. A. Fogg 1990 EPLJ 318 at 319.
20J. Haydon "The Judicial System and Public Interest in Queensland Town Planning" 1989 EPLJ 18 at 22.
21C. Arnold "The Queensland Local Government (Planning & Environment) Act 1990 and the Solicitor – Practice Problems" 1992 EPLJ 195.
22Section 2.24 Local Government (Planning & Environment) Act 1990.
23The Honourable T J Burns, Second Reading Speech, Local Government (Planning & Environment) Bill, 7 June 1990 pp2359-2361.
24Judge K. Row "The Planning & Environment Court – the formative year" Bar Association paper 23 July 1992 at 25-26.
25D. Gore "The New Planning & Environment Court's Jurisdiction" 30 October 1990 (CLE) and S.M. Kiefel QC "The Powers of the Planning & Environment Court to Grant Declarations and Injunctions" 1991 Environmental Law Service.
26D. Gore "Understanding the Planning and Environment Court"; CSR Ltd v Pine Rivers Shire Council 1994 QPLR 325.
27Thornridge Pty Ltd v Redland Shire Council 1995 QPELR 19; DPS Nominees Pty Ltd v Noosa Shire Council 1995 QPELR 101; Coles v Logan Shire Council 1991 QPELR 205; Stewart v Brisbane City Council 1996 QPELR 20; Gatton Shire Council v Mudie 103 LGERA 419.
281994 QPLR 325 at 332.
29P. England "From Revolution to Evolution: Two Decades of Planning in Queensland" (2010) 27 EPLJ 53.
30Section 5.8.4 of IPA.
31Explanatory notes to the Integrated Planning Bill pp 207 – 208.
32Section 4.1.21 IPA.
33M McGrath "The Planning & Environment Court's Declaratory Powers", The Queensland Lawyer (2002) Volume 22, page 147.
34A Davis "The IPA's Declaration Powers", The Proctor, June 2000 p.24.
35L Alford "Does the Court's Power of Declaration make it better?" Queensland Planner 2006, Volume 46, p 11.
36P England "From Revolution to Evolution: Two decades of planning in Queensland" (2010) 27 EPLJ 53
37Section 456 of the SPA.
38Section 757 of the SPA.
39At page 8.
40Westfield Management v Brisbane City Council 2003 QPELR 520.
412000 QPELR 386.
422006 QPELR 731.
43Eschenko v Cummins 2000 QPELR 386; Westfield Management v Brisbane City Council 2003 QPELR 520.
44Section 456(7) of SPA.
45116 LGERA 106.
46For example, Woolworths v Caboolture Shire Council 2004 QPELR 634.
48Section 436(2) of SPA; compare Nestar Pty Ltd v Caloundra City Council 2004 QCA 296 and see my comments in section 6 of this paper.
49Explanatory Notes, Sustainable Planning Bill 2009,8
50In Sevmere Pty Ltd v Cairns City Council  QCA 232, McMurdo P commented on the difficulty of construing the interrelationship between various provisions of IPA and wrote about the "hazy IPA maze of smoke and mirrors" and that harmoniously construing the provisions under consideration was a "challenge worthy of consideration for the intellectual olympics".
51Section 457(3) to (5) of SPA.
52Judge Row, "The Planning and Environment Court – the formative year", Bar Association CLE, 27/07/1992, at p25-26.
53N. Dixon "Judicial Review of Environmental Decision Making in Queensland" Griffith Law Review (1994), Vol. 3,94
54Section 20 Judicial Review Act 1991.
55Section 7 Judicial Review Act 1991.
561995 2 Qd R 559.
57D Gore, "Planning and Environment Law – Recent Developments", Bar Association CLE, 2/96 – 28/03/96, at p27. See also Yu Feng v Chief Executive, Department of Local Government & Planning (unreported) 472/98.
58Examples include Queensland Cement Limited v United Global Cement Pty Ltd 1999 QPELR 166; Westfield Management v BCC 2003 QPELR 520; Herston Kelvin Grove Residents Action Group v BCC 2001 QPELR 382; Burnett Shire Council v Freshcoast Pty Ltd 2007 QPELR 332 and Newing v Silcock 2010 QPEC 49.
59NRMCA (Qld) v Andrew 75 LGERA 64.
60Section 457(1) of SPA.
61Section 457(2)(a) of SPA.
62Section 457(2)(b) of SPA.
63Netstar Pty Ltd v Caloundra City Council 2004 QCA 296 at .
64Mudie v Gainriver Pty Ltd 2002 QCA 546 at .
65Compare s 49 Judicial Review Act 1991 and Chapter 17A Uniform Civil Procedure Rules 1999 (Qld).
66For example, s26 Judicial Review Act 1991.
67For example, Cox v Maroochy Shire Council 2006 QPELR 628.
68District Court Annual Report 2010-2011.
69Kingham DCJ "Refresher on the Planning and Environment Court", Qld Law Society Law Conference, 28/11/2008; Judge Michael Rackemann "The Planning and Environment court-are we there yet? QELA annual conference 2009. Judge Michael Rackemann," The Planning and Environment Court of Queensland-a case study" Asian Judges Symposium 2010.
70District Court Annual Report 2010-2011, p8.
71"Greening Justice – creating and improving environmental courts and tribunals", Professor George Pring and Catherine Pring, published by the Alloss Initiative 2010; Judge M. Rackemann, "The Planning and Environment Court – Are we there yet?" 2009 QELA Conference, 25/05/2009.
72Refer to the comments by His Honour Jude Michael Rackerman in a paper he delivered to the Asian Law Symposium in 2010.
73Section 436(2) SPA
74D.Gore Q.C. "Understanding the Planning and Environment Court" QELA seminar 20/11/2000; Makucha v Albert Shire Council 81 LGERA 243; Judge K. Row "The Planning and Environment Court-The Formative Year" (1992), 28. Cameron v Noosa Shire Council (1998) 1 QdR 124;
752004 QCA 296; 2005 QPELR 68. Fogg, Merling and Hodgetts "Planning and Development: Queensland (Lawbook Co. looseleaf service) at 4006-4008.
76Atkinson J agreed with the reasons of McMurdo P and Williams JA generally agreed
77At paragraph 16.
78(1998) 97 LGERA 265.
79Section 456(1)(a) and (2). See also D. Gore QC "Ministerial Call-in" QELA seminar 13 March 2006.
80Section 456(2) of SPA.
81(2006) QSC 073.
82Minister for Aboriginal Affairs v Peko –Wallsend (1986) 162 CLR 24.
83(2009) QSC 408.
84Netstar Pty Ltd v Caloundra City Council (2004) QCA 296 at paragraph 21.
852003 QPELR 520.
862001 QPELR 2.
872000 QPEC 87.
882001 QPELR 321.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.