The Hamelech judicial review decision: What does it mean for Queensland constructing authorities?

Hamelech Basodeh Pty Ltd (Hamelech) applied to the Queensland Supreme Court for the judicial review of Gold Coast City Council's decision to apply to the Minister for Resources to take Hamelech's land under section 9 of the Acquisition of Land Act 1967 (Qld) (ALA) for the conservation of koalas.

On 12 April 2022, the Supreme Court held that Council's application to acquire Hamelech's land was void and of no effect.

This case serves as a reminder to constructing authorities of the potential implications of judicial review proceedings on compulsory acquisition timeframes and that costs follow the event in the Supreme Court. While Council was only unsuccessful on one of three grounds, it was ordered to pay all of Hamelech's costs of the judicial review proceedings.

The delegation issue

At a special meeting, Council resolved unanimously to delegate the power under section 8 of the ALA (which includes the power to hear an objection) to the Chief Executive Officer, who then sub-delegated the power to the delegate who heard Hamelech's objection.

Hamelech contended that the agenda for the special meeting did not comply with the Local Government Regulation 2012 (Qld) (which requires the agenda be provided to Councillors at least two days before the meeting) and as a consequence, the delegation was of no force and the objection hearing was not properly constituted.

The Court held that the notice provisions are designed to ensure that Councillors have a proper opportunity to participate in the meeting. Where the Councillors participate, notwithstanding the short notice, and resolve unanimously to pass a particular resolution, there is no statutory intention that such a resolution would be invalidated. This is a sensible result.

The prior report issue

Part of Hamelech's land was included as a Key Resource Area (KRA) and under the State Planning Policy that meant the resources on the land should be kept available.

Hamelech argued that it should have been given the opportunity to make submissions in relation to the Groundworks Plus Report, which was referred to in Council's draft objection hearing report.

Council did not allow Hamelech to make further submissions because the Groundworks Plus Report had been provided to Council by Hamelech. Hamelech could have made submissions in respect of the report in its written objection or at the objection hearing.

Finding in favour of Council, the Supreme Court held that Council had relied on town planning decisions it had made in relation to the zoning of Hamelech's land, and had not given great weight to the Groundworks Plus Report, so submissions or evidence contradicting the Groundworks Plus Report could not have affected the conclusions reached by the delegate in the objection hearing report.

The alternatives to resumption issue

Hamelech had also objected to the resumption on the basis that Council had breached the local government principles in section 4 of the Local Government Act 2009 (Qld) by not considering viable alternatives to the compulsory acquisition of Hamelech's land.

In arguing that Council was under no obligation to consider alternatives to resumption, Council relied upon Bloss v Brisbane Exposition and Southbank Development Authority (1984) 54 LGRA 403 (Bloss). That case involved an application challenging decisions made by the Authority to acquire land for the purposes of Expo 88 in circumstances where the owner was offering to lease the land.

In Bloss, the Court held that, “… it is not for the court to inquire as to whether some other means within the authority’s power could have been more properly employed” and dismissed the application. Bloss remains good law.

In Hamelech, the Court found that it was not a question of whether any alternatives were preferable to resumption. Instead, the Court found that because Council had considered viable alternatives to resumption, it was then obliged to at least give Hamelech an opportunity to be heard on the alternatives it was considering. It did not do this, and therefore failed to afford procedural fairness to Hamelech.

Hamelech's actual request to make submissions related to Ministerial correspondence in relation to the future zoning of land. Upon receipt of Council's draft objection report which referred to the Ministerial correspondence, Hamelech's solicitors claimed that it had not had the opportunity to properly consider and make submissions in relation to the correspondence. Council did not allow further submissions because it had provided Hamelech with the Ministerial correspondence more than eight months before objections closed.

The Court allowed Hamelech to broaden its ground of objection to include the alternative protection mechanism argument, upon which it ultimately succeeded. Interestingly, the Supreme Court did not comment on the fact that Hamelech had already had an opportunity to comment on the Ministerial correspondence at the time of its objection, or whether or not the breach of procedural fairness was material.