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Supreme Court Judgment in 'Skyrail'

21 December 2016

The plaintiff, Lower Our Tracks Inc ('LOTI'), challenged the Minister’s exercise of discretion under s 20(4) of the Planning and Environment Act 1987 on three grounds: unreasonableness, irrationality or illogicality; improper purpose; and fettering of discretion. The second and third grounds were based on the contention that the Government had switched from an under-rail design to an elevated rail design much earlier than its announcement on 7 February 2016, but had not announced that switch in policy in order to avoid political controversy. LOTI contended that the Minister’s decision under s 20(4) to exempt himself from the notification requirements of the Act was unreasonable, irrational and illogical and made to give effect to the elevated rail policy decision.

In judicial review proceedings, the Court reviews the legality of decisions made by the executive branch of the state, in this case, the Minister. It does not, and has no constitutional authority to, determine whether the decision is the fairest or best possible. That task is for the Government and the Parliament, who are subject to review by the community at elections. That is the structure of our democracy.

The Minister’s exemption decision was made more than three and a half months after the announcement of the elevated rail design. It was made after the Department presented an extensive brief to the Minister, including a 134 page consultation document and letters from the Councils of affected municipalities. The Minister decided that both of the preconditions contained in s 20(4) were present, although either would have enlivened the discretion. The Minister’s decision concerned whether the exhibition and notification requirements of the planning amendment, otherwise required by the Act, should occur and he decided that they should not. He did not decide whether an elevated rail design should be adopted as part of the level crossing removals. There is no substantial evidence that the Minister acted with an improper purpose or fettered the discretion that s 20(4) conferred on him. The evidence of the two public servants involved in the tender process and the exemption decision did not reveal any improper conduct or purpose by the Minister. The Minister addressed the preconditions contained in s 20(4) and gave reasons as to why he considered that they existed. Those reasons do not reveal the errors which LOTI alleged. I have considered, and taken into account, the concern that the persons who made affidavits relied on by LOTI, have expressed about the effect on them of elevated rail and their dissatisfaction with the process of consultation that the Level Crossing Removal Authority ('LRXA') undertook. They are significant matters. However, in this case, the Minister was not required by law to undertake any consultation and, therefore, inadequacy of consultation does not establish a legal error which would entitle the Court to set aside his decision. LOTI did not establish its grounds on the evidence presented to the Court. The proceeding is therefore dismissed.

Read Justice Ginnane's full judgment on Austlii(External link)

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