15 Aug 2013

A reminder to give "due consideration to all objections" during the compulsory acquisition process

by Majella Pollard

If you have a statutory obligation "to consider" a matter then you must actually fulfil this duty.

The Queensland Supreme Court recently considered whether a constructing authority had given "due consideration" to an objection for the taking of land.

The Court also considered the purpose of headings in Schedule 1 to the Acquisition of Land Act 1967 (ALA), whether the purpose in the notice of intention to resume (NIR) was too vague, and whether the purpose in the NIR could be read in conjunction with the attached Background Information Document.

Lipovsek v Brisbane City Council [2013] QSC 185 involved a challenge under section 20 of the Judicial Review Act 1991 after the Brisbane City Council applied to the Minister under section 9 of the ALA to take land for "environmental purposes". The applicant had lodged an objection to the NIR. Council decided to continue with the acquisition despite the objection.

The applicant's main contention was that Council had failed to properly consider her objection and in doing so, failed to fulfil section 9(2) of the ALA [now renumbered section 9(1)] which requires a constructing authority to give "due consideration of all objections". The applicant challenged the application to the Minister on the basis that the decision was not authorised, was an improper exercise of power and there was no evidence to justify Council's decision.

The Court held that "a procedure required by law to be observed was not observed" and as a result, Council's decision to make an application to the Minster was not authorised under the ALA. The decision to make the application to the Minister was set aside and remitted to Council for further consideration.

Due consideration ground

The applicant had objected to the NIR on the basis that only 70 percent of her land was required for the stated purpose.

Prior to the Council meeting, Council's Establishment and Coordination Committee (known as Civic Cabinet) made a report about the acquisition and the report was circulated to Council members by email. However, the report did not deal with the objection except to refer to the fact of the objection and objection hearing and delegate's report and to attach the relevant documents.

The Court noted that section 8 of the ALA also requires a constructing authority to consider an objection.

The question arose as to whether reference to an objection and a delegate's report would be sufficient to constitute consideration of an objection by Council.

Council argued that a physical copy of the objection report was in the chamber during the meeting. The Court held that "physical transportation of the documents into the chamber may not amount to "due consideration of" the objection".

The Court stated that "the evidence does not suggest that the objection itself or the substance of its grounds were communicated to the Councillors".

The Court recognised that "it is every day governmental, including local governmental, practice that the functions of a repository of statutory power are not exclusively carried out by the named functionary but are dealt with by officers, servants or agents who prepare a report to assist the functionary in carrying out or exercising the statutory power."

The Court went on to suggest that Council may have fulfilled its procedural requirements if the Establishment and Coordination Committee had prepared a report with a summary of the grounds of objection and a summary of the report of the delegate and given the report to Councillors before the meeting of the full Council.

By failing to consider the objection before or during the Council meeting, Council failed to give due consideration of the applicant's objection. As a result, a "condition of the Council's entitlement to make an application to the Minister that the land be taken under s 9 of the ALA has not been fulfilled". Council's decision was therefore set aside by the Court under section 30 of the Judicial Review Act.

The Court then considered the other grounds of appeal even though the applicant was successful on the first ground.

Whether the headings in Schedule 1 to the ALA themselves constitute purposes

Section 5(1)(b)(i) of the ALA provides that a local government may take land "for any purpose set out in the schedule which the local government may carry out". Council sought to acquire the land for "environmental purposes" which is a heading contained in Schedule 1 to the ALA. Schedule 1 contains a number of broad headings which then list a series of dot points which are specific purposes for taking land.

Council argued that the listed dot points should not "restrict the operation" of the headings but should be "seen as extending the meaning of the heading". This argument was rejected by the Court. There are sound reasons for this, including that, before the 2009 amendments to the ALA, the relevant schedule contained one long list of purposes. The Explanatory Notes for the 2009 amendments state in part that the replacement of the schedule is to categorise the description of the items which list the purposes for which land may be resumed.

The Court referred to section 5(4) of the ALA which states that "the heading to a part of the schedule… indicates only the type of activity… to which the purpose ordinarily relates and does not limit the matter to which the purpose may relate". The Court held that "the purpose" is not the heading, but the dot points listed underneath. If the headings were separate purposes then section 5(4) "would not operate sensibly".

Further, the use of the headings, particularly the heading "Other Purposes" would make the specific purposes listed as dot points functionless. Therefore the headings listed in Schedule 1 are not purposes for taking land in themselves. As a result, any taking of land must fall within one of the listed dot points.

Whether the purpose for acquiring the land was too vague

The applicant argued that the taking of land "for environmental purposes" was "too vague and uncertain". Council argued that it was relying on the power in section 5(1)(b)(ii) of the ALA which provides that a local government may take land "for any purpose, including any function of local government, which the local government is authorised or required by a provision of an Act other than this Act to carry out".

Council relied on its power under section 11(1) of the City of Brisbane Act 2010 which states that "the council has the power to do anything that is necessary or convenient for the good rule and local government of Brisbane". Section 11(2) of that Act limits that power to something that "the State may validly do".

The Court discussed the meaning of this limitation and whether it meant that the wider power of Council to take land for any purpose within the scope of section 11(1) of the City of Brisbane Act was limited to whether the State could take land for the same purpose under its executive purpose.

No evidence was led on this issue and the Court did not take a final view on the position.

Whether the purpose could be read in conjunction with the related Background Information Document

Council argued that in determining the specific purpose of the acquisition of land, the NIR should be read in conjunction with the attached Background Information Document. Reading both documents together, the Court held that "it is not difficult to identify that the proposed taking of land" was for the purpose nominated by Council.

The Court held that the Background Information Document "may be considered with the NIR" and that "there are cases which suggest that a statement of purpose at a high level of generality is sufficient".

Message from this case

If you have a statutory obligation "to consider" a matter then you must actually fulfil this duty.

In the context of compulsory acquisition, a constructing authority must consider at least a summary of each objection and a summary of the delegate's report. The constructing authority should then have a written record of the deliberation so that if challenged it can provide contemporaneous evidence.

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