When is a decision subject to judicial review?

3 December 2018
Stafford Hopewell, Special Counsel, Brisbane

The Judicial Review Act 1991 (Qld) (JRA) provides an avenue for a person aggrieved by an administrative decision to seek judicial review.

However, the right of a person to make an application for review of a decision[1] and the power of the Court to make orders[2] depend on the existence of ‘a decision to which this Act [JRA] applies’, an expression comprising three elements.[3] First, there must be a ‘decision’. Secondly, the decision must be of an ‘administrative character’. Thirdly, the decision must have been made, proposed or required to be made ‘under an enactment’.

These elements were recently considered by the Supreme Court of Queensland in Trask Development Corporation No 2 Pty Ltd v Moreton Bay Regional Council.[4]

In this case, TLC (a developer) applied to Moreton Bay Regional Council (Council) to remove its land from the Environmental Areas Overlay under the Council’s Planning Scheme. The request was made to Council via an online “Request for mapping change” (Mapping Amendment). Council ultimately refused Mapping Amendment and TLC subsequently made an application to the Court for a statutory order of review of that refusal.

Council resisted TLC’s application on the following grounds:[5]

  1. The letter issued by Council refusing the Mapping Amendment did not constitute or reveal any decision for the purposes of the JRA; and
  2. If the Court found that there was a decision, the decision refusing the Mapping Amendment was not a decision made under an enactment.


Was the decision made under an enactment?

Council argued that:

  • the request for the Mapping Amendment was a request made in the context of an online process for the correction of overlay mapping errors provided as a ‘customer service’. The refusal, in the Council’s submission, was not ‘under an enactment’ because it was simply a ‘customer service’;
  • there is no right under the Planning Act 2016 for an application to be made to amend a planning scheme and there is no express or implied power of authority for Council to determine such an application; and
  • the refusal of the Mapping Amendment was not a final decision to which the JRA applied.

Justice Ryan considered whether the nature of the decision was final or operative in a practical sense and held that ‘the decision is, in my view, binding, whether it is a decision “under” the online mapping amendment service or whether it is a decision “under” an enactment’.[6]

In determining whether a decision is made under an enactment, the Court had regard to the following two criteria set out in the leading High Court case of Griffith University v Tang:[7]

  1. The decision must be expressly or impliedly required or authorised by the enactment; and
  2. The decision must in itself confer, alter or otherwise affect legal rights or obligations.

TLC argued that its legal rights were affected in relation to the future use and development of its land. The Court considered that TLC did not have the right to develop the land according to its own perception of what the ‘correct’ overlay mapping should be, which was denied by the Council’s refusal of the Mapping Amendment.

The Court relevantly held that the second of the Tang criteria was not met and the decision was not one to which the JRA applies:[8]

[TLC] did have a right to apply for an amendment to an overlay map but that right was not affected by the decision (the refusal to commence the amendment process). That right (to apply) was not exhausted or extinguished by the refusal. TLC could apply again for an amendment to the overlay map – including for example via the online process, via appendix 3, via a variation request or perhaps by a direct request to MBRC.

The decision that the refusal did not affect TLC’s rights was sufficient in itself to determine the Council’s application for dismissal in its favour.[9] TLC also argued that the relevant enactment was the Local Government Act 2009. However, the Court held that the authorisation to Council, contained in the LGA, was too general to be considered an ‘enactment’ for the purposes of the JRA.


Key takeaway

The JRA and its equivalent legislation in other States and federally is drafted to balance the need for administrative accountability and compliance with the law with the practical – that not every decision should be or needs to be re-opened. The decision in Trask reminds us that careful consideration must be given to identifying the precise nature and effect of the relevant administrative decision in framing or defending any challenge to agency actions.

[1] JRA s 20.
[2] JRA s 30.
[3] JRA s 4(a).
[4] [2018] QSC 170.
[5] Council also resisted on technical grounds as to application formalities under JRA s 25.
[6] [2018] QSC 170 at [125].
[7] (2005) 221 CLR 99.
[8] [2018] QSC 170 at [137], [138].
[9] Regardless, Her Honour went on to make other findings on other submissions.

Authored by:
Stafford Hopewell, Partner
Sarah Day, Associate

This update does not constitute legal advice and should not be relied upon as such. It is intended only to provide a summary and general overview on matters of interest and it is not intended to be comprehensive. You should seek legal or other professional advice before acting or relying on any of the content.

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