Application for judicial review of Minister's call in decision refused

6 minute read  24.05.2023 Tim Hanmore, Kate Thorogood, Rachel Hoch

The Supreme Court dismissed an application for judicial review of the Minister's decision to call in Wanless' development application for a resource recovery and landfill facility near Ipswich.


Key takeouts


  • The Planning Minister can make a decision to 'call in' a particular development application where a 'State interest' is involved.
  • The applicants raised five grounds to challenge the Minister's decision to call in the development application. The Supreme Court did not accept any of the grounds.
  • The Minister is yet to decide whether to approve or refuse the development application.

The Supreme Court dismissed an application for judicial review of the Minister's decision to call in Wanless' development application for a resource recovery and landfill facility involving the rehabilitation and reuse of existing mining voids in Ebenezer, west of Ipswich.

What is a call in?

The Planning Minister may decide to 'call in' a particular development application where a 'State interest' is involved. A 'State interest' is defined under the Planning Act 2016 (Qld) (the Planning Act) as an interest that the Minister considers affects an economic or environmental interest of the State, or part of the State, or affects the interests of ensuring that the purpose of the Planning Act is achieved.

A call in decision means that the development application is:

  • removed from the conventional system for approval or refusal by a local council within the jurisdiction of the Planning & Environment Court (P&E Court); and
  • assessed and decided by the Minister, with no recourse to the P&E Court.

The facts

The proceeding concerned three separate applications:

  • an application by Austin BMI Pty Ltd (Austin BMI);
  • an application by Veolia Environmental Services trading as Ti-Tree Bio-Energy (Veolia); and
  • an application by a number of local residents of Ipswich (the local residents).

The applicants each sought a judicial review by the Supreme Court of the decision made by the Minister (the first respondent) to call in the development application made by Wanless Recycling Park Pty Ltd (Wanless) (the second respondent). Wanless' development application was for a new resource recovery and landfill facility involving the rehabilitation and reuse of existing mining voids at Ebenezer, west of Ipswich. Ipswich City Council (the third respondent) approved the resource recovery component but refused the landfill component of the development.

Judicial review allows the Supreme Court to examine the process followed by the Minister. It is not a merits review of the development application.

Wanless appealed the Council's partial refusal to the P&E Court and then took steps to by-pass the appeal process by requesting the Minister call in the development application. The Minister did so, and this resulted in the discontinuance of the P&E Court appeal.

Austin BMI has also submitted a development application for a landfill facility in Ipswich, which is the subject of an undecided appeal in the P&E Court. Austin BMI's development application was not called in.

Each of the applicants challenged the Minister's process on four grounds:

  • Ground 1: apprehended bias;
  • Ground 2: failure to consider representations;
  • Ground 3: the decision was unreasonable; and
  • Ground 4: the Minister failed to provide ‘reasons’ for the decision.

The local residents raised a fifth ground: that the call in decision was incompatible with their human rights as guaranteed under the Human Rights Act 2019 (Qld) (Human Rights Act).

First ground: apprehended bias

No party contended that there was actual bias only that there was apprehended bias.

The test for apprehended bias is well-established – it will arise where a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the decision. The apprehension of bias must be firmly established and will not be found lightly.

The applicants contended that there were 6 reasons that supported a finding of apprehended bias. Broadly, they were that:

  • the Minister did not call in other materially indistinguishable development applications;
  • the Minister accepted donations from the lobbying firm retained by Wanless;
  • the lobbying firm had direct access to the Minister's chief of staff;
  • a request was made by the project director of Wanless' development application that the call in decision be made 'expeditiously';
  • the call in request was placed in the Minister's 'VIP corro' email folder; and
  • the Minister opted to call in the development application despite the government subsequently banning the 'dual-hatting' practice, which likely occurred in this instance.

The Court did not accept any of these arguments. Instead, the Court concluded:

  • the evidence did not establish that the other development applications were materially indistinguishable, and in any event, the call in power is not confined or restricted by previous decisions (that is, the Minister is entitled to make decisions afresh);
  • looking at all of the circumstances in a collective way, there was an absence of any lobbying that might be said to have affected the Minister's impartiality; and
  • the donations were not shown to have a logical connection with the Minister's decision making.

Wanless contended that the principles of procedural fairness, including apprehended bias, did not apply given the statutory context and particular circumstances. The Court did not accept this argument and noted that if apprehended bias had been established, the applicants would have been entitled to relief.

Second ground: failure to consider representations

The applicants contended that the Minister failed to consider 61 representations in deciding to call in the application (in circumstances where the legislation requires the representations to be considered). The Court did not accept this and instead observed that there was compelling evidence that the Minister did consider the representations.

Third ground: unreasonable decision

The applicants contended that the decision was legally unreasonable. The decision would be legally unreasonable if either the outcome or decision-making process lacked an intelligible justification. The applicants argued that the decision was legally unreasonable because it was not consistent with previous call in decisions. The Court did not accept this for reasons detailed above. Further, the Court noted that the Minister set out 12 reasons for the call in and that these comprised an intelligible justification for the decision.

Fourth ground: no reasons provided

The applicants contended that the Minister failed to provide reasons for the decision, as required by section 103(3)(a) of the Planning Act. For the reasons noted above, the Court did not accept this contention.

Fifth ground: human rights

The local residents contended that there was an infringement on their right to participate in public life and the discontinuation of the P&E Court appeal limited their right to a fair hearing. The Court did not accept these arguments and noted that the local residents had an opportunity to submit representations for consideration by the Minister and engage in judicial review proceedings.

The Minister is yet to decide whether to approve or refuse the development application.


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https://www.minterellison.com/articles/application-for-judicial-review-of-ministers-call-in-decision-refused