Christian Outreach Centre v Toowoomba Regional Council & HSBG Pty Ltd [2012] QPEC 29 [2012] QPELR 542

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Christian Outreach Centre v Toowoomba Regional Council & HSBG P/L [2012] QPEC 29 PARTIES: CHRISTIAN OUTREACH CENTRE ARBN 008 3008 092 (Applicant) v TOOWOOMBA REGIONAL COUNCIL (Respondent) and HSBG PTY LTD (ACN 122 215 454) First co-respondent FILE NO/S: BD4801/2011 DIVISION: PROCEEDING: Application ORIGINATING COURT: Planning and Environment Court DELIVERED ON: 18/04/2012 DELIVERED AT: BRISBANE HEARING DATE: 07/03/12 JUDGE: Searles DCJ ORDER: 1. Declaration that the change, the subject of the Request to change an existing approval pursuant to s 369 of the Sustainable Planning Act 2009, lodged by Place Design Group on behalf of HSBG Pty Ltd with the Respondent, Toowoomba Regional Council, on 20 July 2011, is not a permissible change within the meaning of s 367 of the SPA; -- 1 of 26 -- 2 2. Declaration that the decision of the Toowoomba Regional Council made on 7 November 2011 and notified to Place Design by letter dated 15 November 2011 is of no force or effect CATCHWORDS: Application – Declaration - Permissible change - s369, s367 Sustainable Planning Act 2009 – Wednesbury Unreasonableness – Meaning of likely – Discretionary Considerations COUNSEL: Applicant: S.Ure First Respondent: J. Houston Second Respondent: D.Gore QC & M.Williamson SOLICITORS: Applicant: HWL Ebsworth First Respondent: Norton Rose Second Respondent: Connor O‟Meara Application [1] The applicant seeks the following declarations and orders concerning an application to amend an approved development in Toowoomba:- 1. A Declaration that the change the subject of the Request to Change an existing approval pursuant to s 369 of the Sustainable Planning Act 2009 (SPA), lodged by Place Design Group (Place Design) on behalf of HSBG Pty Ltd (HSBG) with the Respondent, Toowoomba Regional Council (TRC), on 20 July 2011, is not a permissible change within the meaning of s 367 of the SPA; -- 2 of 26 -- 3 2. A Declaration that the decision of the TRC made on 7 November 2011 and notified to Place Design by letter dated 15 November 2011 is of no force or effect; 3. Any consequential directions and orders that the court deems appropriate. Grounds of Application [2] In its opening the applicant foreshadowed reliance upon SPA s 367(1)(a) and (c), but at the conclusion of the hearing reliance was confined to s 367(1)(c). The applicant conceded that he could not persuade the court that the Council‟s decision would be vitiated under s 367(1)(a), so that the Council‟s decision in that respect stands.1 Accordingly, there is no need for me to consider that ground. [3] Section 367 relevantly provides:- “367 What is a permissible change for a development approval 1. A permissible change, for a development approval, is a change to the approval that would not:- (a) Result in a substantially different development; or (b) …; (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; or (d) …” 1 T2.12.30-42 -- 3 of 26 -- 4 Original HSBG Application [4] On 20 May 2008, Place Design lodged with the Council a Development Application on behalf of HSBG seeking a Material Change of Use – impact assessable – retail showroom, indoor recreational facility (gym) and food outlet (café/restaurant) on land described as lot 7 on SP113455 Parish of Drayton and situated at 471-493 Hume Street, Kearneys Spring, Toowoomba (Land). The present Applicant owns the adjoining land immediately to the south described as lot 1 on RP17429 on which it operates a church and college. The applicant did not lodge a submission objecting to this application. Only one submission was made, that by a commercial competitor. Approval of Original Application [5] On 6 July 2009 the Council approved the HSBG Development Application subject to conditions. Application for Permissible Change to Development Approval [6] On 20 July 2011 Place Design on behalf of HSBG lodged with the Council a request to make a Permissible Change to that Development Approval (change application) pursuant to s 369 of SPA. [7] The changes proposed by HSBG to the original development application included:- (a) Deleting the indoor recreational facility (gym); -- 4 of 26 -- 5 (b) Varying the approved building envelope by housing the proposed development in a single building rather than three separate buildings; (c) Relocating 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. Council Approval of Application for Permissible Change [8] The change application was approved by the Council on 7 November 2011 and it is that approval which is under attack. Nature of application [9] Application for declarations and orders made under s 456 of SPA is in the nature of judicial review proceedings2 invoking, in appropriate circumstances, what is commonly known as the principle of Wednesbury unreasonableness sourced in the judgment of Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation3 where it was said: “In the result this appeal must be dismissed. I do not wish to repeat myself but I will summarise once again the principle applicable. The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may still be possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority 2 Di Marco v Brisbane City Council & Ors [2006] QPELR 73 at [14]. 3 (1948) 1KB 223 at 223-234. -- 5 of 26 -- 6 could ever have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them. …” (emphasis added) Issue for Determination [10] In determining the change application under SPA s 375 the Council obviously formed the opinion, by reference to s 367(1)(c), that the proposed change would not be likely, in its opinion, to cause a person to make a properly made submission objecting to the proposed change, if the circumstances allowed. The question to be determined is whether the Council‟s decision is one which is so unreasonable that no reasonable Council could have made it.4 [11] The Wednesbury test of unreasonableness has been described as “stringent”5 and “extremely confined”.6 The courts have acknowledged that it may be very difficult to satisfy where the matter of which the decision making authority is required to be satisfied is a matter of opinion or policy or taste.7 [12] In Newing & Ors v Silcock & Ors8 Rackemann DCJ referred to a passage from the judgment of Gibbs J in Buck v Bavone9:- “[22] In Lillywhite v Chief Executive Liquor Licensing Division, Department of Tourism, Fair Trading and Wine Industry Development (2008) QCA 88 the Court of Appeal referred, with approval, to the principles expressed by Gibbs J in 4 See Gibbs J, Parramatta City Council v Pestell (1972) 128 CLR 305 at 327. 5 Westfield Management Ltd v Perpetual Trustee Company Ltd (2006)) NSWCA 245 at [71] 6 Attorney General (NSW) v Quin (1990) 170 CLR 1 at 36 per Brennan J. 7 Buck v Bavone (1975-1976) 135 CLR 110 at 118-119. 8 [2010] QPEC 49 9 [1976] 9 ALR 481 -- 6 of 26 -- 7 Buck v Bavone in which, after discussing other grounds for review, it was said (underlining added): „Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears too unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. In such cases the authority will be left with a very wide discretion which cannot be effectively reviewed by the courts.‟ [23] Referring to this passage, Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 said at 654: „This passage is consistent with the proposition that, where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way.‟” (my emphasis) Background [13] HSBG‟s written submissions provided a helpful chronology of events. A copy is Annexure A. As I have said, on 20 May 2008 the original HSBG development application (DA) was lodged with the Council. The application was for a new Masters Home Improvement store on the land. HSBG is a company in the McNab group of companies (which has a construction arm). On 4 November 2011 HSBG entered into a development agreement with Hydrox Nominees Pty Ltd, a Woolworths Ltd entity, for the construction of a Woolworths‟ Masters Hardware -- 7 of 26 -- 8 Store on the land.10 Hydrox became the registered owner of the land on 30 November 2011. On the 16 July 2009 Council approval of the DA was subject to conditions 43-45 requiring a stormwater easement and construction of sewerage infrastructure through the applicant‟s land.11 [14] In early 2009, after Mr McNab became aware the Council was proposing a condition requiring a private easement over the applicant‟s land, he arranged for a McNab representative, Mr Timms, to meet with the applicant‟s representative Mr Butlin to discuss the issue.12 That meeting took place on 31 March 2009. [15] Thereafter, there were a series of meetings between the parties and an offer was made by HSBG to the applicant to pay $75,000 in early August 2011 for the easement.13 That offer was not accepted and on 17 August 2011 Mr McNab made a further offer to the applicant Mr Wootton of $150,000. On 6 October 2011 Mr Wootton indicated to HSBG that the applicant would grant the easement in consideration of a payment of $500,000. No agreement has been reached between the parties. Meeting 21 July 2011 [16] Relevant to the present issue, an important meeting took place between Mr McNab and Mr Oastler of COC on 21 July 2011. Prior to that meeting Mr McNab sent Mr Oastler an email on 11 July 201114 in which he proposed a further meeting in relation to the easement issue and said: 10 Affidavit M J McNab 15 February 2012, Exhibit MJM3 11 Exhibit 2, pp 29-31 12 McNab affidavit 13 Ibid, paras 28-30 14 McNab affidavit, Exhibit MJM4. -- 8 of 26 -- 9 “I would also like to discuss the current proposal we will have before Toowoomba Regional Council shortly so as to ensure that if there are any impacts on the Church or the School we can mitigate same.” It is common ground that the foreshadowed current proposal referred to was the Change application which was lodged with the Council nine days later on 20 July 2011. The following day 21 July, the meeting between Mr Oastler and Mr McNab took place. During that meeting, Mr McNab told Mr Oastler that the Council had power to resume the easement land. No agreement was reached at that meeting.15 [17] There was a conflict in the evidence between Mr McNab and Mr Oastler as to what was said at that meeting in relation to the proposed change to the DA. According to Mr Oastler,16 at that meeting Mr McNab showed him a site plan and another drawing of the HSBG proposed development. During a discussion about the proposed changes to the DA, Mr Oastler says Mr McNab told him that the application was a non-notifiable application that had already been approved by the Council. Accepting Mr McNab‟s statement, Mr Oastler said he then handed over the extant easement negotiations to the general manager of COC Mr Wootton.17 [18] Mr McNab has a different recollection of that meeting. He said that he took Mr Oastler through the various changes in the change application, told him that a request had been made to the Council for those changes and that he never at any stage either at that meeting or otherwise indicated to Mr Oastler that the proposed changes had already been approved by the Council.18 As to the conflict between Mr McNab and Mr Oastler I am not prepared to find that Mr McNab made the statement asserted by Mr Oastler. I think Mr Oastler is mistaken. Given that the 15 Affidavit J Oastler para 10. 16 Undated affidavit J Oastler, filed 13 January 2012, court document 8, para 9. 17 Ibid, para 11. -- 9 of 26 -- 10 change application had only been lodged with the Council the day before, on 20 July 2011, and given the process within Council required to address such an application, it would have been obvious to all involved that, absent a deliberate attempt by Mr McNab to mislead Mr Oastler which I reject, the application could not have been approved by the meeting on 21 July 2011. Secondly, Mr Oastler did not discount the possibility of error when he said in evidence: “Look at the end of the day, I walked out of that meeting very clear in my mind that it had been approved. Whether that was a mistake or not, I walked out of that meeting with a very clear understanding that it had been approved and all we were talking about was the easement.” Whatever may have been the basis of Mr Oastler‟s belief, it was as a result of anything said to him by Mr McNab. Meeting between the Applicant and Council - 24 October 2011 [19] On 24 October 2011 Mr Wootton, Mr Geaney the applicant‟s town planner and Mr Oastler attended a meeting with Mr Marks a City Councillor, Mr Somers General Manager Planning and Development and Mr Quinlan Development Assessment Engineering Co-Ordinator for the Council. The meeting was primarily to discuss the easement proposal.19 As I have said, the issue of possible Council resumption of the easement area had already been raised in the 21 July 2011 meeting. While the conference was concerned mainly with the easement issue, discussion did move to the change application of HSBG. [20] Mr Geaney in the course of preparation for that meeting had discovered there was a change application to the existing DA which enabled him to collect his thoughts on 18 McNab affidavit, paras 24 and 25. -- 10 of 26 -- 11 the proposed changes and to form an opinion as to how those changes might impact on the applicant‟s land ahead of the 24 October meeting.20 [21] During the discussion of the change application Mr Geaney asked the Council representative whether a decision had been made and was told that it had not. Mr Geaney then told them that the applicant would definitely look at making a submission against the change proposal if the original application were to be made again in the proposed amended form. He went on to identify the main concerns of COC as being:- (a) The shifting of the main entrance to the HSBG proposed development to the COC land and northern boundary; and (b) (The traffic) queuing past the COC land on Hume Street.21 He also deposed to advising the Council of other unparticularised [in his affidavit] detrimental impacts.22 [22] Under cross examination23 Mr Geaney said that at the time of the meeting with the Council he 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. He had formed the view that the changes to the plan involving the loading dock being placed along the common boundary of the HSBG/COC land and the movement of the access closer to the COC land made it obvious to him there was a 19 Affidavits J Oastler, paras 13 and 14; C Geaney, 22 December 2011. 20 Geaney, paras 7-9. 21 Geaney, paras 16 and 17. 22 Geaney affidavit, paragraph 17. 23 T1.47.1-50. -- 11 of 26 -- 12 potential for a very significant impact on the COC land. It was with that state of mind that he conveyed the applicant‟s concern to the Council representative at that meeting when telling them that the applicant would definitely look at making a submission against the change application. I note that change of the loading dock along common boundary was not specifically stated in Mr Geaney‟s affidavit as one of the main concerns advised to the Council at the meeting. Whether or not it was one of the other unparticuarlised detrimental impacts is not clear from the evidence. In any event I accept that, by the time of the meeting, that was one of his concerns. [23] Mr Oastler also gave evidence24 that the applicant‟s objection to the proposed change to the DA was made at that meeting with the Council. He was cross- examined as to why he did not put that in his affidavit and he said he didn‟t necessarily see the need to put that in.25 [24] Two things may be said about the criticism of Mr Oastler on that issue. Firstly his evidence shows him saying “we” advised the Council clearly referring to the COC representatives at that meeting. By contrast his affidavit deposes to his personal involvement in the matters the subject of it. Whereas he could well have expanded his affidavit to repeat what Mr Geaney told the Council at the meeting he, or, more particularly, his advisers could be excused, some would say commended, for avoiding repetition. I do not see that the absence of those matters in Mr Oastler‟s affidavit affects his credit. 24 T1.18.20. 25 T1.18.30. -- 12 of 26 -- 13 Letter Applicant’s Solicitors to Council – 1 November 2011 [25] Within seven days of 24 October 2011 meeting with Council, the applicant‟s solicitors wrote to the Council by letter dated 1 November 2011 marking the letter to the attention of Ms Wendy Hoaedley, the Council‟s delegated authority26. It is an important letter and I shall set it out in full:- “Re proposed permissible change for retail showroom at 471-493 Hume Street, Kearney Spring – MCU1/2007/4336/A. We act for Christian Outreach College. We have been instructed to write to you in relation to the abovementioned request for a permissible change pursuant to section 369 of the Sustainable Planning Act 2009 (SPA). Our client is concerned about 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. Accordingly, we ask that Council not decide the request until our client has had an opportunity to consider the request and provide the Council with confirmation of its position. Please confirm Council‟s attitude to our client‟s requests.” [26] The Council replied by letter dated 4 November 201127 stating:- “I write in response to your letter dated 1 November 2011, advising that HWL Ebsworth is acting for the Christian Outreach College in relation to a Request to Change an Approval on land adjoining Lot 2 RP 115465 owned by the Christian Outreach Centre. 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 26 Affidavit PJ Bittner, 16 January 2012, Exhibit CJB1 and PJB3. 27 Ibid, Exhibit PJB2 -- 13 of 26 -- 14 in accordance with section 375 of the Sustainable Planning Act 2009. I trust this information assists you. Please do not hesitate to contact Council‟s development assessment planner, Wendy Hoaedley if you have any further questions. Yours faithfully Blake O‟Mullane Principal Planner, Development Assessment.” Three days later on 7 November 2011 Council approved the change application. Has the Wednesbury Test been satisfied? [27] It is clear from the evidence that at the time of the Council decision to approve on 7 November 2011 the Council was aware of the following facts:- (a) The details of the existing DA approval; (b) That the applicant had not lodged a submission objecting to the original proposal and that only one submission had been received by the Council and that was from a commercial competitor of HSBG; (c) The proposed changes to the original proposal, namely: (i) Deleting the indoor recreational facility (gym); (ii) Varying the approved building envelope by housing the proposed development in a single building rather than three separate buildings; -- 14 of 26 -- 15 (iii) Relocating 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; (d) The 24 October 2011 meeting with the applicant‟s representatives was primarily concerned with the discussion of the easement issue and did not descend to particularity about the applicant‟s concerns; (e) Given that he made the enquiry on the issue, the applicant‟s planner Mr Geaney did not know, until that meeting that no decision had been made by the Council on the change application; (f) As conveyed to it by Mr Geaney at that meeting:- (i) The applicant would definitely look at making a submission against the change proposal if the original application were to be made again in its proposed change form; (ii) The applicant entertained concerns about the proposed change, namely the shifting of the main entrance into the proposed HSBG development to the northern boundary of the applicant‟s land, consequential vehicular queuing past the applicant‟s land on Hume Street, and other detrimental impacts; (g) From the applicant‟s solicitors of 1 November 2011 that:- -- 15 of 26 -- 16 (i) Confirmed the applicant‟s concerns as to adverse impacts that may arise from the change application; (ii) The applicant was in the process of taking advice from its town planners and legal team about whether or not the proposed changed was in fact a permissible change under s 367 of SPA; (iii) The applicant anticipated being in a position to confirm its position to Council within 10 business days; and (iv) The applicant asked the Council to defer its decision until such time that the applicant had the opportunity to consider a status of the request and provide the Council with confirmation of its position; (h) From the combination of what Mr Geaney told it and from that letter, it would have been apparent to the Council that, while the applicant had concerns, it was seeking expert advice to better articulate its position to the Council. [28] Apart from those matters, the Council would have known:- (a) Any decision to approve the change application would avoid further advertising of the change application and deny the applicant the opportunity thereafter of putting a formal submission to Council and to later appeal the Council decision; and (b) From its experience in such matters, it was not unusual for town planners to head up the non-legal advice team in town planning matters, determining what other experts may be necessary. It would -- 16 of 26 -- 17 have been apparent to the Council from the traffic issue raised by Mr Geaney that it was likely a traffic expert would be enlisted by the applicant to assist the applicant. [29] I have considered the meaning of the term “likely” as discussed by Skoien SJDC in KT Corporation Pty Ltd v Logan City Council and State of Queensland28 where His Honour was considering the expression - “reasonably likely to create a traffic hazard for the motorway.” Here, there is no qualification of the word “likely” by the word “reasonably”. In relation to the meaning of “likely” His Honour said:- “[13] The word “likely” has been variously interpreted. A useful start is the definitions in the dictionaries. The Shorter Oxford English Dictionary gives, relevantly, “probable”, as does the excellent Encarta Dictionary. The High Court, in R v Boughey (1986) A. Crim. R 156, discussed the meaning of the word. Gibbs CJ and Brennan J were most influenced by the fact that the word was used in a statute to define murder (an act “likely to cause death”) and the seriousness of that offence led them to the view that probability was meant. Mason, Wilson and Deane JJ came to the same conclusion but in discussing the word said that its ordinary meaning was a “substantial chance, a real, not remote chance, regardless of whether it is more or less than 50 per cent”. That was also what Gibbs CJ, Mason, Wilson and Dawson JJ held in Waugh v Kippen (1986) 64 ALR 195, where the phrase was “likely to cause risk of injury”. I propose to apply that.” [30] In terms of the above test, I consider the 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 28 [2005] QPEC 119 -- 17 of 26 -- 18 less than fifty percent” that the applicant would make a properly made submission as envisaged by s 367(1)(c). [31] I have considered the following submissions made by Mr Gore QC for HSBG:-29 (a) That the traffic and acoustic impacts of concern to the applicant are not supported by the expert evidence or of such moment as to say a submission made in reliance upon the potentiality of those alleged impacts would be rational and reasonable. [32] I reject any suggestion that the applicant‟s concerns are in any way attended by irrationality or unreasonableness. There is nothing to suggest that the applicant would act in a capricious or arbitrary manner30 or would act other than reasonably.31 It is not for me to determine the merits of any traffic or acoustic issues and section 367(1)(c) does not require any merits assessment of the grounds in any submission that the applicant may make, but rather only if it is likely one will be properly made; (a) Next it was said that the applicant‟s solicitor‟s letter of 1 November 2011 does no more than notify the Council of concerns and did not state unequivocally that it would have made an objection to the proposed development. If one parses the letter, that may be so but when read against the background of the facts known to the Council which are set out, including the statements made by Mr Geaney at the meeting of 24 October 2011 to the effect that the applicant would 29 Written submissions, paragraph 55 30 Carillon Developments Pty Ltd v Maroochy Shire Council [2000] QPELR 215 31 Habitat Development Group Pty Ltd v Maroochy Shire Council [2008] QPEC 70 -- 18 of 26 -- 19 definitely look at making a submission, that argument is not supportable; [33] Only a pedant, considering the letter in a vacuum, would confine the letter to an expression of concern only. It was obvious the applicant was seeking the assistance of experts to put its position to the Council. The question is not whether the letter unequivocally stated the applicant would have made an objection to the change, but rather, whether, in all the circumstances, the Council could reasonably have formed the opinion that it was likely the applicant would not make a submission even if circumstances allowed; (a) Next it is said that Mr Geaney‟s statement to the Council at the meeting of 24 October 2011 just referred to was materially watered down or overtaken by two events. Firstly that it did not support the view that the applicant had at that point formed a view that it would make an adverse submission, but merely expressed concerns. Secondly, that letter was not followed up after 1 November, so that the Council could be forgiven for thinking the applicant had taken advice after the 1st of November and elected not to make a submission after all. [34] As to the first leg, it was known to the Council that the applicant‟s planner did not know until that meeting whether or not a decision had been made on the change application. He raised the applicant‟s concerns and told the Council representatives -- 19 of 26 -- 20 that the applicant would definitely look at making a submission. It would have been clear to the Council at the meeting that the applicant‟s planner had only ascertained when so advised that day, that no decision had been made on the change application. The letter of 1 November put the Council on notice that the applicant was seeking advice from experts and required 10 days to revert to the Council to provide particulars of the concerns raised at the 24 October meeting. That letter, coupled with the concerns raised by Mr Geaney on 24 October, should have made it clear to the Council that, had the applicant a legal entitlement to do so (if circumstances allowed), it was likely it would have made a submission articulating in detail all of its concerns, some of which were raised at the meeting of 24 October. Instead of granting further time, the Council‟s response was to advise the applicant‟s solicitors that it was going to continue to consider the change application. In effect, it rejected the 10 day extension requested. Six days after the 1 November letter, on 7 November, the Council approved the application. Of course the test is not whether, had the Council waited ten days as requested by the applicant‟s solicitors, it is likely a submission would have been made but rather, at point of decision, whether it was likely such a submission would have been made in the event the applicant had a legal right to do so which it would have had if the application had been advertised.[ie if circumstances allowed] (a) Finally it is said that the fact is that no submission was ever lodged by the applicant. [35] But the caveat on the decision maker under s 367(1)(c) refers to a likelihood of a properly made submission being made, not its actuality. -- 20 of 26 -- 21 In Rosters Cub Inc v Liquor and Gambling Commissioner and Another [2003] SASC 103 DOYLE CJ said at page 220, para 56; “In the light of that line of authority the judge was right to hold that he could interfere only if the Commission’s opinion was not formed reasonably upon the material before the Commissioner, or if it was shown that the Commissioner’s opinion was so unreasonable that no reasonable person could properly have arrived at it. …. Alternatively and perhaps more accurately, the issue for the judge was whether, acting reasonably, on the material before him the Commissioner could properly have arrived only at the opinion that the premises were so linked to or integrated with the complex that they may properly be regarded as forming part of the complex” [36] Adopting what is said above to be the more accurate test, I conclude that the Council could properly have arrived only at the opinion that the applicant was likely to make a relevant submission [37] The Wednesbury test is satisfied. The decision approving the change application was thereby invalid. The result of that invalid decision was to deny the applicant the opportunity to forward a submission when the change application was appropriately advertised and to, thereafter, pursue its rights of appeal if appropriate. Discretionary Considerations [38] Notwithstanding my finding that the decision of the Council was invalid, it does not automatically follow that a declaration should be made. It is a discretionary matter -- 21 of 26 -- 22 and the discretion is very wide.32 HSBG relies upon the following discretionary factors in submitting that no declaration should lie:- (a) Proceedings bought for an ulterior purpose HSBG submitted that these proceedings were bought by the applicant for an ulterior purpose and only after the breakdown of negotiations with HSBG over the easement. It will be recalled that HSBG made two offers of $75,000 and $150,000 respectively and that the applicant indicated that it wanted $500,000. HSBG points to the fact that no submission opposing the change application was ever made by the applicant notwithstanding that Mr Oastler was aware that it had been made as early as 21 July 2011 when he met with Mr McNab as I have outlined. I reject that submission. There is nothing in the conduct of the applicant to support it. No doubt the easement negotiations were hard fought from both sides as one would expect. But there is nothing in the material to support the view that the applicant has acted other than in furtherance of its legal rights; (b) Next HSBG says that it at all times acted in good faith and not in disregard for planning law. I accept that submission; (c) Next it is said that the Council, the body charged with the public duty of upholding town planning law, has participated in the case to support its decision and it opposes the relief. I have already made a finding against the Council as to its decision so this does not assist HSBG; 32 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339 -- 22 of 26 -- 23 (d) HSBG has commenced construction of the development in accordance with the Council approval. Establishment work commenced on 14 November 2011, demolition on or about 21 November 2011 and construction a few weeks later;33 (e) The applicant‟s concerns as to traffic and noise impacts are said by the applicant to be other new or materially increased impacts which should be rejected. Conclusion re Discretionary Considerations [39] I am conscious of the fact that HSBG has commenced construction pursuant to what it was entitled to regard as a valid approval decision which I have now found to be invalid. That is the one discretionary consideration relied upon by HSBG which in my view has some weight. However, having regard to all the discretionary considerations raised, I do not consider they are, individually or collectively, sufficient to deprive the applicant of the entitlement to the declarations sought. [40] I accordingly make the following orders:- A Declaration that the change the subject of the Request to change an existing approval pursuant to s 369 of the Sustainable Planning Act 2009 (SPA), lodged by Place Design Group (Place Design) on behalf of HSBG Pty Ltd (HSBG) with the Respondent, Toowoomba Regional Council (TRC), on 20 July 2011, is not a permissible change within the meaning of s 367 of the SPA; 33 Affidavit MJ McNab, paragraph 40 -- 23 of 26 -- 24 A Declaration that the decision of the TRC made on 7 November 2011 and notified to Place Design by letter dated 15 November 2011 is of no force or effect; Costs [41] I invite submissions from the parties on costs. -- 24 of 26 -- 25 Annexure “A” Chronology Date Event Reference 15.11.06 HSBG acquired lot 7 McN [2] 20.05.08 HSBG lodged a DA with the TRC McN [3] 31.03.09 Oastler met with Timm from McNab to discuss the possibility of obtaining a stormwater and sewerage easement through the COC land JO [4] 16.07.09 The DA was approved by the TRC ( with conditions 43-45 requiring a stormwater easement and construction of sewerage infrastructure through the COC site: ex.2 pp.29-31) McN [6] 05.11.09 McNab attended a meeting with COC representatives to continue discussions with COC about the acquisition of the easement McN [7] 23.07.10 Butlin (from COC) notified McNab by email that it was not “in (COC‟s) best interests to proceed with the easement” Ex MJM2 11.07.11 Email sent from McNab to Oastler to discuss “the current proposal we will have before (TRC) shortly so as to ensure that if there are any impacts on...the school we can mitigate same” Ex MJM4 20.07.11 Request to change DA made to TRC Ex PJB3 p.1 21.07.11 McNab met with Oastler to discuss the changed plans McN [23] 01.08.11 Oastler sent an email to McNab referring him for negotiations to Wootton (from COC) and wishing him “all the best with your project” Ex MJM5 04.08.11 McNab met with Wootton to discuss the changed plans and the easement McN [28] 09.08.11 McNab sent an email to Wootton, referring to the meeting, and confirming an offer of $75,000 to acquire the easement Ex MJM6 06.10.11 McNab had a telephone conversation with Wootton in which Wootton offered to grant the easement for $500,000 McN [34] 07.10.11 McNab sent an email to Wootton, confirming that Wootton Ex MJM7 -- 25 of 26 -- 26 required $500,000 for the easement 24.10.11 COC representatives met with TRC representatives to discuss the easement proposal and the changed plans JO [13] 01.11.11 HWL notified TRC that COC was taking advice whether the proposed change was a permissible change and requested TRC not to decide the request to change the DA until COC confirmed its position Ex PJB1 04.11.11 The TRC notified HWL that it would continue to assess the request despite the HWL request Ex PJB2 04.11.11 A Woolworths entity (Hydrox Nominees Pty Ltd) and HSBG entered into a development agreement for the construction of a Woolworths Masters Hardware Store on lot 7 Ex MJM3 07.11.11 The respondent approved the permissible change request PJB [4] 07.11.11 Wootton sent an email to McNab advising that COC‟s request for compensation for the easement may need to be reviewed Ex MJM8 25.11.11 COC‟s Originating Application seeking a declaration that the change was not a permissible change was filed 30.11.11 Hydrox Nominees Pty Ltd became the registered owner of lot 7 McN [39] Table of Abbreviations DA Development Application or Development Approval JO Jonathan Oastler McN Michael McNab MJM Michael John McNab PJB Peter John Bittner -- 26 of 26 --