The bulldozers have done their job. The Glossy Black cockatoo feed trees are obliterated. But, do we have a right to know exactly what happened within Noosa Council to allow this process? More precisely, do 12 year old Spencer Hitchen, his mum Maxine and local environment philanthropist Angela Whitbread have a right to know what happened? Well, the answer from Noosa Council is “no”. It’s none of their business. None of our business.
There’s a bit to unpack here, and plenty to learn from, so let me explain.
An application by Spencer Hitchen, Maxine Hitchen and Angela Whitbread, required Noosa Council to provide a statement of reasons under the Judicial Review Act (JRA) for its decision on 16 May 2023.
That decision allowed the final development and clearing of critical habitat for the Glossy Black Cockatoo located at 1 Grasstree Court, Sunrise Beach, which had been stalled because Council had decided in 2022 that the offset site on the Council’s former dump site was unsatisfactory.
Just like the Sekisui-Yaroomba case, the decision maker here failed to take into account the considerable community concern about this project. Council is now denying the community the reasons for its decision when it’s been legally challenged to do so.
Noosa “Council” have now stated that the applicants “are not entitled to request a statement of reasons for the Decision. This is because Your Clients are not aggrieved by the Decision, in a legal sense, for the purposes of the JRA.”
As we know, the applicants included a 12- year boy, who has been campaigning with his mother for years and who has been supported by over 80,000 petitioners and has achieved Australia-wide recognition for his campaign.
As Councillors are aware, the applicants have a history of involvement in the issue through submissions and activities over a substantial period of time, they represent a group of a significant size in Noosa Shire and can show the community’s perceptions of their ability to represent the public interest.
The Noosa community expects that development will occur with due regard to the environment and that, in turn, requires a balance of competing factors. To allow the balancing process there must be a ‘contestant’ who can challenge arguably unlawful developments. That’s where these three come in.
If these applicants do not have standing to challenge the legality of the Council decision then Council can potentially ignore any residents or ratepayers who aren’t living virtually next door to a major, contentious development.
Why is this Noosa Council that speaks so loudly about ‘transparency’ now so defensive of its decision-making that it is not prepared to divulge the reason for its decision when challenged by lawyers?
There is no particular inconvenience or hardship in the Council being required to prove that the decision is lawful by divulging its reasons and process.
It is not clear if the term “Council” refers to the acting CEO, the Mayor or Council staff but Council records do not show our elected Councillors were consulted as “Council”.
Delegated decisions are usually at least “noted” by Council, but this decision has not been noted.
The Mayor and Councillors were informed on 7 May 2023 that the decision could be considered “invalid” because the decision-maker lacked delegated authority. While some Councillors acknowledged the letter and advised that Council was seeking legal advice, the Mayor has neither acknowledged that allegation nor replied before going on leave.
It is disappointing that the Mayor has not provided a substantive reply.
Proceedings for the judicial review allow review of an administrative decision on the grounds that the decision maker had no right to make the decision in question. The purpose of the proceedings is to test the lawfulness of the decision.
The right to request reasons for the decision is the first step in judicial review.
The community will accept a delay for Council to seek legal advice given the legal nature of the claims but after receiving that advice a proper detailed response to a serious allegation of inappropriate decision-making, because it is not backed by lawful delegation, should be provided.
The application was dated 10 May and despite a weekend and its complexity, it was approved by Noosa Council staff on 16 May and notified on 17 May 2023.
Were all relevant issues considered? There are serious grounds for doubt.
Why was such a significant and controversial decision not referred to Council for Councillors to decide, especially considering this was required by the Delegation Register?
Following the decision, Councillors reacted by unanimously voting to workshop the delegation process. There’s clearly room for improvement.
Refusing to give reasons for the decision under the JR Act suggests that the reasons may be embarrassing. Someone in Council has decided that not responding to the community and avoiding transparency was a better option.
Noosa Council’s Brisbane-based lawyers might not have considered the optics of this. Put simply, it’s not a good look.
Council cannot bury the problem by refusing to shed light on its internal processes.
The fact that the trees have been destroyed does not affect the fact that the decision was – in my view – invalid.
Noosa Councillors need to ensure that Council operates according to the law, and according to its own rhetoric on transparency.
It’s too late for that cockatoo habitat at Grasstree Court, but not too late to explain what happened so we can all learn from this.