The Hamelech judicial review decision: what does it mean for Queensland building authorities?

While the Queensland Supreme Court’s recent decision Hamelech Basodeh Pty Ltd v Gold Coast City Council & Anor [2022] QSC 057 was not in favor of the Board, it will not necessarily have negative consequences for other building authorities.

Hamelech Basodeh Pty Ltd (Hamelek) applied to the Supreme Court of Queensland for judicial review of the Gold Coast City Council’s decision to request the Minister for Resources to take the Hamelech land under section 9 of the Acquisition of Lands Act 1967 lands (Qld) (TO THE) for the conservation of koalas.

On April 12, 2022, the Supreme Court ruled that the Council’s request to acquire the Hamelech land was null and void.

This case serves to remind building authorities of the potential implications of judicial review proceedings on compulsory acquisition timelines and costs following the event in the Supreme Court. Although the Board was successful on only one of the three grounds, it was ordered to pay the full costs of Hamelech’s judicial review proceedings.

The issue of delegation

At a special meeting, the Board unanimously resolved to delegate authority under Section 8 of the ALA (which includes the authority to hear an objection) to the General Manager, who then sub-delegated power to the delegate who heard Hamelech’s objection.

Hamelech argued that the agenda for the special meeting did not comply with Local Government Regulation 2012 (Qld) (which requires the agenda to be provided to councilors at least two days before the meeting) and therefore , the delegation was not in effect and the objection hearing was not properly constituted.

The Court held that the notice provisions are designed to ensure that councilors have an appropriate opportunity to participate in the meeting. When councilors attend, despite the short notice, and unanimously decide to pass a particular resolution, there is no statutory intent that such resolution be invalidated. It is a sensible result.

The question of the preliminary report

Part of the land of Hamelech has been included as a key resource area (KRA) and within the framework of the planning policy of the State, which meant that the land resources had to remain available.

Hamelech argued that he should have been given the opportunity to comment on the Groundworks Plus report, which was referred to in the Board’s draft objection hearing report.

The Board did not permit Hamelech to make further submissions because the Groundworks Plus report had been provided to the Board by Hamelech. Hamelech could have made submissions regarding the report in his written objection or at the hearing of the objection.

In favor of Council, the Supreme Court found that Council had relied on planning decisions it had made regarding the zoning of the Hamelech land and had not given much weight to the Groundworks report Plus, so that submissions or evidence contradicting the Groundworks Plus report could not have affected the conclusions reached by the delegate in the Objection Hearing Report.

Alternatives to the recovery question

Hamelech had also opposed the takeover on the grounds that the Council had breached the local government principles of section 4 of the Local Government (Qld) Act 2009 by failing to consider viable alternatives to the forced acquisition of the lands of Hamelech.

In arguing that the Board was not required to consider alternatives to takeover, the Board relied on Bloss v Brisbane Exposition and Southbank Development Authority (1984) 54 LGRA 403 (Flower). This case concerned a claim challenging decisions taken by the Authority to acquire land for the purposes of Expo 88 in circumstances where the owner offered to lease the land.

In the Bloss case, the Court held that “…it is not for the court to consider whether other means within the power of the authority could have been more appropriately employed” and dismissed the claim. Bloss remains the good law.

In Hamelech, the Court concluded that the issue was not whether alternatives were preferable to repossession. Instead, the Court found that because the Council had considered viable alternatives to takeover, it was then obligated to at least give Hamelech the opportunity to be heard on the alternatives it was considering. He failed to do so and therefore failed to provide procedural fairness to Hamelech.

Hamelech’s actual request to make submissions related to departmental correspondence regarding future land zoning. Upon receipt of the Council’s draft objection report which referenced the ministerial correspondence, Hamelech’s attorneys asserted that he was not given the opportunity to properly review and comment on the correspondence. The Board did not allow further submissions because it had provided Hamelech with the ministerial correspondence more than eight months before the close of objections.

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

Implications for Queensland building authorities

The council did not appeal the decision.

Hamelech is an example of how judicial review proceedings can lead to significant delays in projects where a building authority relies on its statutory powers to acquire land. By the time the Supreme Court rendered its decision, the Board’s Notice of Intent to Resume had expired, so it would not have been open to the Board to conduct a new objection process and bring another ask the minister. The board should start the acquisition process over again.

It is also a reminder to ensure that the appropriate delegations are in place (although the Board has been successful in this). It is increasingly common for objectors and their legal advisers to ask to see the relevant delegation before the start of the objection hearing.

In the future, building authorities may be able to single out this case on its facts. We note that the issues considered by the Court relating to delegations and special meetings under the Local Government Regulation 2012 and the principles of local government in section 4 of the Local Government Act 2009 relate only to local governments, not local governments. other building authorities.

Although the Hamelech judgment does not alter the current obligation of building authorities to provide objectors with information relevant to their grounds for objection or which will be taken into account by the building authority when deciding whether the land will be repeated, it is a reminder of the importance of granting natural justice to those affected by the exercise of the powers of compulsory acquisition.