Application for declaration of invalidity of Council's decision – whether a permissible change – Wednesbury Unreasonableness – Meaning of likely – Discretionary considerations – ss 369 and 367 Sustainable Planning Act 2009
Facts: This was an application for declarations and orders in relation to a decision by Toowoomba Regional Council (Council) to approve a request to make a permissible change to a development approval under section 369 of the Sustainable Planning Act 2009 (SPA) made pursuant to section 456 of the SPA. The development approval was for a material change of use - impact assessable, retail showroom, indoor recreational facility (gym) and food outlet (café/restaurant) and was granted by the respondent on 6 July 2009 with respect to land located at 471-493 Hume Street, Kearneys Spring, Toowoomba (HSBG Land).
The development approval was to facilitate the development of a new Masters Home Improvement store on the HSBG Land.
The Applicant owned adjoining land to the south of the HSBG Land, on which it operated a church and college.
The Co-Respondent's change application sought the following changes to the development approval:
- deletion of the indoor recreational facility (gym);
- variation of the approved building envelope by housing the proposed development in a single building rather than three separate buildings; and
- relocation of the approved access from approximately half way along the Hume Street frontage to a position approximately 140m south of the approved access at the common boundary between the HSBG Land and the Applicant's land.
The change application required assessment against section 367 of the SPA. Section 367(1)(c) of SPA relevantly provided that:
"A permissible change, for a development approval, is a change to the approval that would not –
(c) for an approval for assessable development that previously required impact assessment – be likely, in the responsible entity's opinion, to cause a person to make a properly made submission objecting to the proposed change, if the circumstances allowed".
In a meeting held during Council's assessment of the change application, a representative of the Applicant had informed the Council that they would definitely consider making a submission if the original application were made again in the proposed amended form, primarily due to concerns about traffic impacts.
At the time of the meeting with Council, the Applicant's representative had formed a preliminary opinion as to the impact of the proposed change on the Applicant's land but required input from traffic and acoustic experts.
By letter dated 1 November 2011 the Applicant's solicitors wrote to the Council in relation to the proposal, stating that:
"Our client is concerned about the adverse impacts that may arise from the request and is in the process of taking advice from its town planners and legal team about whether or not the proposed change is in fact a permissible change pursuant to section 367 SPA.
We anticipate being in a position to confirm our client's position to Council within 10 business days."
The Council replied by letter dated 4 November 2011:
"Toowoomba Regional Council received the application for a request to change an approval on 21 July 2011 and despite your letter it has been determined that Council will continue to assess the application in accordance with section 375 of the Sustainable Planning Act 2009."
On 7 November 2011 the Council approved the change application.
The Applicant sought the following declarations:
- that the change, the subject of the request to change an existing approval, was not a permissible change within the meaning of section 367 of SPA; and
- that the decision to approve the change request was of no force or effect.
The Co-Respondent submitted that:
- the proceedings were brought for an ulterior motive due to the breakdown in negotiations with the Applicant in relation to an easement;
- it had at all times acted in good faith;
- Council participated in the proceeding to support its decision;
- it had commenced construction of the development in accordance with the development approval; and
- the Applicant's concerns as to traffic and noise impacts were other new or materially increased impacts which should be rejected.
In hearing the Application, the question to be determined by the Court was whether the Council's decision was one which was so unreasonable that no reasonable Council could have made it.
Decision: The Court held that, the change was not a permissible change within the meaning of section 367 of the SPA:
- an application for declarations and orders made under section 456 of SPA may invoke, in appropriate circumstances, the principle of Wednesbury unreasonableness sourced in the judgment of Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223
- Council, acting reasonably, in execution of its statutory role, could not have formed any opinion but that there was "a substantial chance, a real not remote chance regardless of whether it was more or less than fifty percent" that the Applicant would make a properly made submission as envisaged by section 367(1)(c)
- any suggestion that the applicant's concerns were attended by irrationality or unreasonableness was rejected
- it was not for the Court to determine the merits of any traffic or acoustic issues and section 367(1)(c) did not require any merits assessment of the grounds in any submission that the Applicant may make, but rather only if it was likely one would be properly made
- the Wednesbury test was satisfied. The decision approving the change application was thereby invalid
- it did not automatically follow that the declaration should be made as the declaration was a discretionary matter
- the fact that the Co-Respondent had commenced construction was a discretionary factor which held some weight. However, the discretionary factors considered were not individually or collectively sufficient to deprive the Applicant of the entitlement to the declarations sought.
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