SUPREME COURT OF QUEENSLAND

CITATION:	Breakwater Pacific Pty Ltd v Chief Executive, Department of Resources [2024] QSC 107 	
PARTIES:	BREAKWATER PACIFIC PTY LTD
(applicant)
v
CHIEF EXECUTIVE, DEPARTMENT OF RESOURCES
(respondent)	
FILE NO/S:	BS 1465 of 2022
	
DIVISION:	Trial Division	
PROCEEDING:	Application	
ORIGINATING COURT:	Supreme Court at Townsville 	
DELIVERED ON:	31 May 2024	
DELIVERED AT:	Brisbane	
HEARING DATE:	7 and 8 November 2023
Respondent’s supplementary submissions 12 March 2024
Applicant’s final submissions 19 March 2024
Respondent’s submissions in reply 27 March 2024	
JUDGE:	Muir J	
ORDER:	1.	The Application for judicial review is dismissed. 
2.	I will hear the parties as to costs. 	
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISION – UNDER AN ENACTMENT – where the applicant applied to surrender a lease – where the respondent made a decision refusing the application – where the applicant seeks judicial review of the decision – whether the decision made by the respondent was made under an enactment for the purpose of the Judicial Review Act 1991 (Qld) 
ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISION – STANDING – where the respondent claims that the applicant has no standing to bring a claim – whether the applicant has standing to seek judicial review of the decision 
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where the applicant claims that there was an error of law in the respondent’s decision – whether s16 of the Land Act is applicable to an applicant to surrender a lease. 
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – IRRELEVANT CONSIDERATIONS – RELEVANT CONSIDERATIONS – where the applicant claims that the decision was premised on irrelevant considerations – where the applicant claims that there was a failure to account for relevant considerations – whether s61(2) of the BICA Amendment Act was relevant to the refusal of a surrender application. 
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – NATURAL JUSTICE – where the applicant alleges that the failure to put the views of interested parties before the decision maker constitutes a failure of natural justice. 
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – NO EVIDENCE – where the applicant claims that the decision was based upon the existence of a fact that does not exist – where the applicant claims that the fact was critical to the reasons of the respondent – whether the fact was incorrectly considered. 

Acts Interpretation Act 1954 (Qld)
Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5
Coastal Protection and Management Act 1995 (Qld), s 3(c), s 4(e), s 124(4)
Judicial Review Act 1991 (Qld), s 20, s 23, s 24, s 30
Land Act 1994 (Qld), s 4, s 16, s 327, s 327A, s 327C, s 329
Land Title Act 1994 (Qld), s 27, s 30
Mineral Resources Act 1989 s 318AAV

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Argos Pty Ltd v Corbell (2014) 254 CLR 394  
Australia Pacific LNG Pty Ltd v The Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport [2019] QSC 124
Australian Broadcasting Tribunal v Bond and Others (1990) 170 CLR 321
Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493
Australian Prudential Regulation Authority v TM Effect Pty Ltd (2018) 158 ALD
Broadbridge v Stammer (1987) 16 FCR 296
Commissioner of State Revenue (Vic) v Royal Insurance Australia Ltd (1994) 182 CLR 51
Fox Coal Pty Ltd and Anor v Minister for Resources [2023] QSC 197
Fuller & Anor v Lawrence [2023] QCA 257 
Griffith University v Tang (2005) 221 CLR 99
Johnston v Commissioner of Police [2024] QSC 6
King v Director of Housing (2013) 23 Tas R 353
Lock the Gate Alliance Ltd v Minister for Natural Resources and Mines [2018] QSC 021
Minister for Aboriginal Affairs v Peko‐Wallsend Ltd (1986) 162 CLR 24 
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1
Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme (2003) 216 CLR 212
Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475
Onus v Alcoa of Australia Ltd (1981) 149 CLR 27
Pierce v Rockhampton Regional Council [2014] 202 LGERA 61
Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
Right to Life Association (NSW) Inc v Secretary, Dept of Human Services and Health (1995) 56 FCR 50
Save Bell Park Group v Kennedy [2002] QSC 174
Sean Investments Pty Ltd v Mackellar (1981) 38 ALR 363
Underwood v Queensland Dept of Communities [2013] 1 Qd R 252
Unions NSW v New South Wales (2023) 407 ALR 277
United States Tobacco Co v Minister for Consumer Affairs (1988) 20 FCR 520
Vega Vega v Hoyle & Ors [2015] QSC 111
Zhang v Commissioner of the Australian Federal Police (2021) 273 CLR 216
	
COUNSEL:	M H Martinez for the applicant
A D Scott KC and W D Evans for the respondent	
SOLICITORS:	Keir Steele Waldon for the applicant
GR Cooper, Crown Solicitor for the respondent	
Overview
[1]	The applicant, Breakwater, holds a term lease and six Deeds of Grant in Trust from the State of Queensland over the Marina Basin and The Marina Entrance Channel which permits it to run its enterprise as the owner and operator of the Townsville Breakwater Marina – part of the Breakwater Island Casino Development (the BIC Development) in North Queensland. The BIC Development emerged from an agreement in force by the enactment of the Breakwater Island Casino Agreement Act 1984 (“the 1984 Agreement Act”) which allowed for the operation of casinos in Queensland. Relevantly, clause 57 of the agreement provided for the State to grant a Special Lease for 30 years ending 24 March 2015 over the BIC Development site for the purpose of “the construction of the rock revetment walls to allow for reclamation to occur”.
[2]	Subsequently, the Breakwater Island Casino Agreement Amendment Act 2006 (“the 2006 Agreement Act”) amended the 1984 Agreement Act and allowed the State to subdivide the Special Lease into two being Lots 1 & 2 on SP 255434.  On 12 October 2012, term leases over the two lots were granted to Breakwater for a period of 10 years (“the 2012 leases”). 
[3]	On 9 November 2018, Breakwater applied to a Delegate of the respondent, the chief executive of the Department of Resources, for a surrender of the 2012 leases. Nearly four years later, on 10 October 2022 and after two interventions by the Minister, the Delegate refused the application for surrender. The day after the Refusal [on 
11 October 2022], the land reverted to unallocated State land. The respondent then pursued Breakwater for outstanding rent plus penalty interest of some $391,432.33.
[4]	By this application, Breakwater seeks to review the Refusal Decision under s 20(2)(e) and s 23(a) and (b) of the Judicial Review Act 1991 (Qld) on various substantive grounds, including that the respondent made errors of law, took into account irrelevant considerations and failed to take into account relevant considerations.
[5]	The relief sought includes orders quashing or setting aside the Refusal Decision from a date prior to the 2012 leases expiring; referring the matter back to the Delegate for further consideration; and any other orders that follow from the unlawfulness of the Refusal that the court considers necessary to do justice between the parties - with any, or all rent due under the 2012 leases waived from 9 November 2018 [the date of Breakwater’s application to surrender].  
[6]	The real bone of contention and the obvious reason for the review is Breakwater’s obligation to pay outstanding rent to the respondent up until the 2012 leases expired. But as will emerge, this lament fails to recognise that the accrued rent arises from the delay in making the Refusal Decision rather than the decision itself; and otherwise, that the discretion to waive up to one year’s rent rests with the chief executive under to s 329(2) of the Land Act 1994 and not with this court. 
[7]	In opposing the application, the respondent raised two jurisdictional issues: first, that the Refusal Decision was not a ‘decision under an enactment’ for the purpose of the Judicial Review Act, and secondly, even if it was, Breakwater has not established it has standing to bring the application. Otherwise, the respondent submitted that there is no merit in any of the grounds or review – or the myriad of relief sought. 
[8]	The resolution of the application is found in the answers to the following three questions.
(a)	 First: Was the Refusal Decision a decision made under an enactment?
(b)	Second: Does Breakwater have standing to bring the application?; and
(c)	Third: Was the Refusal Decision an improper exercise of power by the Delegate?
[9]	In order to answer these questions, it is first necessary to say more about the 2012 leases and the statutory regimes under which the Refusal Decision and this application for review were made.
More about the facts and the relevant statutory provisions  
[10]	The 2006 Agreement Act did a number of things, including relevantly, the following:  
(a)	First: It acknowledged the “very large capital expenditure” and that it was “necessary” to provide “security and assurances” to enable such expenditure (paragraph E), such “titles, rights and privileges” not to be “derogated from by the State in any manner whatsoever except as hereinafter provided” (paragraph G); 
(b)	Second: It confirmed that if the Special Lease was divided into two new leases as anticipated by s 60(1) (essentially for the western and northern revetment rock walls in Lots 796 and 795 respectively) they: 
A.	would “have terms equal to the remaining term of the Special Lease” – so only to 24 March 2015 (s 60(2)(b)); and 
B.	could be transferred to the Lessee’s own nominee, and the State was deemed to approve such transfer (s 60(3)), and the “nominee must be the registered owner of a freehold lot” (s 60(4)).
(c)	Third: It included s 61 (which related to the Marina Entrance Channel and Marina Basin and not the 2012 Leases) which stated relevantly as follows: 
“61	Term lease for the Marina Entrance Channel and Marina Basin;
(1)		If the Special Lease is subdivided and the new lease over new lot 795 and existing lots 676 … and 796 … and leases … are transferred as mentioned in clause 60, the Trustee’s nominee shall be entitled to apply to the State for the grant of a term lease under the Land Act on similar terms in respect of the Marina Basin and Marina Entrance …
(2)		The term lease for which an application may be made under clause 61(1) is the most appropriate tenure and use of the Marina Basin and Marina Entrance Channel including for the purpose of – 
(a)	section 16 (Deciding appropriate tenure) of the Land Act; and
(b)	the coastal management plan under the Coastal Protection and Management Act 1995.”
[11]	The Coastal Protection and Management Act 1995 (Qld) has, as one of its four main objects to “ensure decisions about land use and development safeguard life and property from the threat of coastal hazards” (s 3(c)). It achieves its objects by “coordinated and integrated planning and decision-making involving … using other relevant legislation wherever practicable to achieve the objects of this Act” (s 4(e)).  
[12]	Section 124(4) of the Coastal Protection and Management Act provides that the owner of freehold land above the high-water mark and connected to or receiving the benefit of a structure on tidal lands, has a statutory obligation to maintain the structure.  
The 2012 leases 
[13]	The western revetment wall was subdivided in 2012, with two parts surrendered to the State to become “reserve” and the other two parts (Lots 1 and 2) leased to Breakwater for 10 years under the 2012 leases, with the existing conditions for Breakwater to maintain the wall. At the time, it was expected that Breakwater would transfer the 2012 leases to the adjoining land owners. But as things transpired, this transfer did not happen. Breakwater made the following two points about this fact:
(a)	First: The rent increased from $8,204 in 2013/2014 to $80,075 in 2021/2022 and, faced with such exorbitant increases, the adjoining land owners refused to agree to the transfer; and
(b)	Second: Requisition by the “Department” could have properly tethered (by covenant) the title held by the adjoining land owners to the western revetment wall Lots 1 and 2.  
[14]	I accept the respondent’s submission that a consideration of these two points (and whether they are correct or not) is irrelevant to this application because the alleged conduct (or lack of it) is not conduct by the respondent. Rather, any increase in rent is determined by the Valuer-General; and the other failure to requisition appears to be a reference to the Registrar of Titles in the discharge of that officer’s responsibilities under the Land Title Act 1994 (Qld).
[15]	Breakwater held the 2012 leases until 9 November 2018, when it gave one year’s notice under s 329 of the Land Act (expiring on 8 November 2019) of its intention to surrender the leases. 
Applications for surrender under the Land Act 
[16]	Section 327C of the Land Act provides for an application to be made for a surrender of a lease as follows:
“327C Applying to surrender lease
(1) A lessee may apply, in writing to the chief executive, to surrender all or part of a lease.
(2) However, before applying, the lessee must give notice of the lessee’s intention to apply to any other person with a registered interest in the lease.
(3) The lessee may also give notice to any other person the lessee considers has an interest in the lease.”
[17]	Section s 327A of the Land Act provides for the terms of the surrender as follows:  
“327A Surrender of lease
A lessee may surrender, absolutely or conditionally, all or part of a lease—
 (a) on terms agreed to between the chief executive and the lessee; and
 (b) with the chief executive’s written approval.”
[18]	Finally, s 329(1) and (2) of the Land Act requires an applicant relying on s 327A, to give one year’s notice of the intention to surrender or pay one year’s rent in advance at the time of surrender as follows:
“329 Notice of surrender needed
(1) If a lessee is absolutely surrendering a lease under section 327A, the lessee must give 1 year’s notice of the intention to surrender or pay 1 year’s rent in advance at the time of surrender.
(2) However, the chief executive may waive the giving of 1 year’s notice or paying 1 year’s rent in appropriate circumstances.”
Other relevant provisions of the Land Act 
[19]	Section 4 of the Land Act states that in “the administration of this Act, land to which this Act applies must be managed for the benefit of the people of Queensland by having regard to” certain stated principles.  One of those principles is that “land evaluation based on the appraisal of land capability and the consideration and balancing of the different economic, environmental, cultural and social opportunities and value of the land”.
[20]	Chapter 2 of the Land Act is headed “Land Allocation” and Part 1 of that Chapter provides for “allocation powers”.  One of those powers is the power conferred on the Governor-in-Council to grant land in fee simple under s 14.  Section 15 provides the power for the Minister to lease unallocated State land.
[21]	Breakwater’s substantive grounds of review place significant reliance on s 16 of the Land Act. I will return to a discussion of this section later in these reasons, but at this point it is useful to set out this section in full: 
“16 Deciding appropriate tenure
(1)	Before land is allocated under this Act, the chief executive must evaluate the land to assess the most appropriate tenure and use for the land.
(2) When conducting the evaluation, the chief executive must—
(a)	take account of State, regional and local planning strategies and policies and the object of this Act; and
(b)	take account of commitments of, and undertakings given by, the State in relation to the land; and
(c)	to the extent the land is in a priority development area—take account of, and give primary consideration to, any relevant development instrument under the Economic Development Act 2012 that applies to the land; and
(d)	to the extent the land is Cape York agreement land—take account of commitments and undertakings given by a person under, or arising from, a Cape York agreement that have effect in relation to tenure.
(3)	The chief executive may comply with subsection (1) by using, as the evaluation, an earlier assessment of the most appropriate tenure and use for the land if—
(a)	the assessment was conducted by or for the State; and
(b)	the chief executive is satisfied the assessment takes account of the matters mentioned in subsection (2).
(4)	This section does not apply to a grant of rail land in fee simple to the State.”
[Emphasis added].
The Refusal Decision 
[22]	As stated at the outset, the Refusal Decision was made by the Delegate of the respondent on 10 October 2011. The reasons for the Refusal Decision are in writing. The findings and reasons are discussed in more detail in the analysis of the substantive grounds of review below, but it is instructive at this point to give an overview of the “Refusal Decision”.   
[23]	The Delegate started by identifying the “material and other evidence” which was “before” the respondent that had been “considered”. This included the 1984 Agreement Act and the 2006 Agreement Act, the most appropriate use and tenure (MAUT) Policy, the MAUT assessment from September 2022, and the Internal Submission recommending refusal dated 10 October 2022 and a series of emails and file notes.  During the course of the hearing before me there was a suggestion by Breakwater that the Delegate had not considered its “application for a refusal”, as that document was not expressly referred to in the documents provided by disclosure. Thankfully this issue was resolved and it was conceded that it was a document before the Delegate.  
[24]	Under the heading of “Findings on material questions of fact” in the Refusal Decision, the Delegate stated relevantly as follows: 
“18) I am satisfied, that since the application to surrender was submitted to the department, every effort has been made to try to find a solution where [BPac] could retain the lease including
	- reduction in valuation of the rock wall
	- reduction in rent amount due to reduced valuation
	- reduction in rent via Land Regulation amendment.
19) I have considered and accept all findings in the Senior Land Officer’s submissions to refuse the application to surrender the leases.”
[25]	The Delegate also set out  her “Decision and reasons for decision” for the Refusal as follows:  
“…
Section 16(2) of the Land Act – having evaluated the land under section 16, considers the surrender of the lease is not consistent with the most appropriate tenure and use for the land
In terms of section 16 of the Land Act, the most appropriate use is rock wall and tenure of the land is a lease.  [1] The land was required to have a lease placed over it due to the provisions of the BICA Act and these provisions are still in force. … [2] Other leases also created under the BICA Act are still in place and have been renewed by Breakwater Pacific in accordance with their most appropriate tenure. [3] Under 16(2)(b) a delegate must take into consideration commitments of, and undertakings given by, the State in relation to the land, which the creation of leases under the BICA Act have created.  I have decided the application to surrender the lease is not consistent with the most appropriate tenure and use for the land.
Section 327A of the Land Act – having evaluated the application to surrender the lease under this section, considers the surrender of the lease is not appropriate
…
I have decided that as the lease is still required to remain in place to facilitate the ongoing maintenance of the rock wall and is the most appropriate tenure, to not grant the surrender of the lease on any terms and refuse to provide written approval for the surrender.
Section 330 of the Land Act – having evaluated the application to surrender the lease under this section, considers the surrender of the lease is not appropriate
…
I have decided as approval for surrender has not been given by the department as the most appropriate use is rock wall and the most appropriate tenure is lease.”
[26]	The MAUT Checklist conclusion was: 
“S61(2) of the Breakwater Island Casino Agreement Amendment Act 2006 specifies that a term lease is the most appropriate tenure in relation to s.16 of the Land Act 1994 and the CPMA.  
A lease is the most appropriate use and tenure for these two leases.”
[27]	The Internal Submission provided: 
“List of Evidence
…
Interested Parties Views:
Meeting was held with representatives from adjoining body corporates on 13 July 2022 and they were not aware that Breakwater were looking at surrendering the leases.  A lease was offered to them if they fell benefit in having a right to maintain the rock wall once the lease has been removed but this is not critical to the surrender or expiration of the existing lease.
Natural justice:
Natural justice will be fulfilled by the provision of a statement of reasons for the decision.
…
Inspection and Valuation:
This requirement was not investigated as the existing lease is being refused to be surrendered.
…
Findings of Fact
…
The MAUT has shown that the most appropriate tenure for the rock wall is lease, as it is required to remain in place to ensure the land stability of the adjoining freehold land.
…
Departmental Policies and Relevant Legislation:
Section 16 – Deciding appropriate tenure
The most appropriate tenure for the land is a lease as required in the BICA Act and amendments.  The lessee could apply for freehold of the land in accordance with sections of the Amendment Act but DoR policy does not support freeholding of seabed leases.
…
Section 327C – Applying to surrender lease
Breakwater Pacific applied in writing to surrender the leases absolutely.  During the meeting held with Breakwater on 13 July 2022, Breakwater had engaged with the adjoining FH body corporates to see if they would be willing to take over the leases but has not informed the body corporates that they have applied to surrender the leases or that the leases will expire.  …
Reasons
…
The most appropriate use is rock wall and land tenure is a lease in accordance with s16 of the Land Act 1994 and [1] the requirements of the Breakwater Island Casino Agreement Act (and amendments) where a lease has been required to be granted over the revetment walls associated with the reclamation of land within the project area.
[2] If the surrender was approved, this rock wall would be the only wall within the development approved under the BICA Act that will be without the tenure prescribed within BICA Act.
The surrender is also recommended to be refused as [3] the right to use and occupy that comes with a lease will then be lost to Breakwater Pacific who has the continuing obligation to maintain the rock wall.” 
[Emphasis added]
The Judicial Review Act 
[28]	The statutory basis for Breakwater to apply to this court for review of the Refusal Decision is found in s 20 of the Judicial Review Act under which a two-part test emerges:
(a)	Part one:  a person must be aggrieved by a decision; and 
(b)	Part two:  the decision must be one to which the Judicial Review Act applies. 
[29]	A decision to which the Judicial Review Act applies means “a decision of an administrative character made…under an enactment.”
Question 1: Is the Refusal a decision made under an enactment?
[30]	The expression “decision of an administrative character made … under an enactment” has been subject to considerable judicial contemplation. In Griffith University v Tang (2005) 221 CLR 99, the High Court focused on the later part of the definition being “under an enactment”. In doing so, Gummow, Callinan and Heydon JJ appositely warned that whilst cases have focused on discrete elements, “there are dangers in looking at the definition as other than whole.” With these observations in in mind, it is therefore convenient to focus on the first question for determination as posed in paragraph 8 above.   As part of that, it is also necessary to also consider the character of the Refusal Decision. 
[31]	In Griffith v Tang, Gummow, Callinan and Heydon JJ relevantly observed as follows:
“The determination of whether a decision is ‘made…under an enactment’ involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment.  A decision will only be ‘made… under an enactment’ if both these criteria are met.”
[Emphasis added]
[32]	Their Honours went on to say that “a statutory grant of a bare capacity to contract does not suffice to endow subsequent contracts with the character of having been made under that enactment”;   and that “[t]he power to affect the other party’s rights and obligations will be derived not from the enactment but from such agreement as has been made between the parties.”  In Griffith v Tang, the High Court also made the following two important points about the enunciated two-limb test:
(a)	First: it is sufficient that the enactment required or authorises decision from which new rights or obligations arise; and
(b)	Second: the relevantly affected legal rights do not necessarily have to “owe their existence to the enactment in question” instead “[a]ffected rights or obligations derived from the general law or statute will suffice.” 
Limb 1 of Tang
[33]	As to the first limb of Tang, Breakwater submitted that the application to surrender and the decision to refuse it were both made under the enactment because the surrender of the 2012 leases was statutorily confined to ss 327 and 329 of the Land Act. With the offer of the surrender requiring one-year’s notice. 
[34]	The respondent submitted that the Refusal Decision is no more than an anterior decision to refuse to enter into a negotiation to agree on terms of surrender that might be approved by the chief executive; and therefore, it does not affect the applicant’s rights. This submission was underpinned by the following three propositions:  
(a)	First: The words “affect rights” in the second limb of the Tang test referred to a power to unilaterally affect rights, in contradistinction to a power to enter into some kind of an agreement; and a decision to enter into such an agreement has no effect at all without the agreement of the other party, and it is in fact the agreement of the other party that triggers the effect on rights;
(b)	Second: Section 327A(b) of the Land Act refers to the chief executive’s written approval, and that must mean written approval of what is described in the preceding words of the section - that is, surrender on the terms agreed between the chief executive and the lessee.”; and 
(c)	Third: No rights can be affected until the conditions in s 327A of the Land Act are met.  One of those conditions is the agreement of terms of surrender between the chief executive and the lessee (Breakwater).  And it is that agreement, which is capable of affecting rights, not an anterior decision to not enter into a negotiation about the terms of a possible agreement.   
[35]	The respondent also pointed to the chief executive being required to approve a surrender on the terms agreed, not just a surrender in the abstract. This submission was reasoned in the following three ways: 
(a)	First: The words “the chief executive’s written approval” appear after the words describing a surrender “on terms agreed between the chief executive and the lessee”. Therefore, any approval will be of no effect unless the terms of the surrender have been agreed between the chief executive and the lessee;
(b)	Second: This interpretation is logical as any other interpretation would mean that the chief executive would approve something before an essential requirement, the terms agreed, was satisfied; and
(c)	Third: no terms were agreed upon and the decision is therefore in substance, no more than a decision to refuse to enter into a negotiation to agree on terms of surrender that might be approved by the Chief Executive.  
[36]	In Australian Broadcasting Tribunal v Bond and Others (1990) 170 CLR 321, the High Court considered the interpretation of ‘decision’ as those words appeared in s 5 of the Administrative Decisions (Judicial Review) Act 1977 and ultimately held that the Tribunal’s finding [that Mr Bond was not of fit and proper character] was not a reviewable decision. This was because the anterior finding relating to Mr Bond was held to be a “mere step along the way” in the Tribunal’s intermediate decision as to whether the ‘respondent licensees’ were no longer fit and proper persons (or entities) to hold broadcasting licences. The final decision was whether or not the Tribunal renewed the license. The relevant observations of the High Court are as follows: 
“The policy arguments do not, in my opinion, call for an answer different from that dictated by the textual and contextual considerations. That answer is that a reviewable "decision" is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.
Another essential quality of a reviewable decision is that it be a substantive determination.
…
It follows from my interpretation of the word "decision" that the Federal Court had jurisdiction under s.3(1) of the ADJR Act to review the Tribunal's finding that the licensees were no longer fit and proper persons to hold their broadcasting licences under the Act. Although that decision was an intermediate determination made on the way to deciding whether to revoke or suspend the licences or to impose conditions on them, it was a decision on a matter of substance for which the statute provided as an essential preliminary to the making of the ultimate decision.
On the other hand, the Tribunal's conclusion that Mr Bond would not be found to be a fit and proper person to hold a licence was not a determination for which the Act provided and was no more than a step in the Tribunal's reasoning on the way to the finding that the licensees were no longer fit and proper persons to hold their licences. True it was an essential step in the reasoning by which the Tribunal chose to support its determination concerning the licensees, but this circumstance is not enough to invest the conclusion with the characteristics which would qualify it as a reviewable decision. I would reject the notion accepted in the Federal Court that the finding adverse to Mr Bond was a "decision ... not authorized by" the Act within the meaning of s.5(1)(d). For the reasons already given, the finding was not relevantly a "decision".
[Emphasis added]
[37]	It follows from the above observations in Bond  that a ‘decision’ must be final, operative and determinative unless the statute specifically provides for the making of a decision; and a substantive determination. 
[38]	The following observations of A Lyons J in Vega Vega v Hoyle & Ors [2015] QSC 111, are a salient application of the principles by which an applicant seeking to establish that a decision satisfies the provisions of the Judicial Review Act, must have regard to:
“[107] In Bond, Mason CJ held that normally a conclusion reached in a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision “unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.
…
[109] Accordingly, it is argued that the decisions in the present case are not mere recommendations which may be ignored, but are essential prerequisites to the final determination which is capable of being prejudicial to Dr Vega Vega’s rights. Therefore, it is argued that the decisions of the first to fifth respondents are decisions of an administrative character to which the JR Act applies and are amenable to orders for a statutory order of review.”
[Emphasis added]
[39]	I am satisfied that the Refusal  Decision satisfies the two pronged test in Bond for two reasons: 
(a)	First: The terms of s 327A(b) implicitly confer upon the chief executive authorisation to make a decision on whether or not to approve a surrender. The effect of the Refusal Decision was to refuse the applicant’s surrender application and in that sense was a final, operative and substantive decision; and
(b)	Second: Even if the respondent was to succeed in its characterisation of 
s 327A, the decision to ‘not enter formal negotiations’ is an intermediate determination made as “a decision on a matter of substance for which the statute provided as an essential preliminary to the making of the ultimate decision”; it is therefore a decision on a matter of substance. In the present case, an anterior decision would, for example, involve a decision as to whether Breakwater was a recognised party to the 2012 leases and, as such, was eligible to enter into negotiations. Another relevant example is a decision as to whether the applicant satisfied the requirements under s 329 of the Land Act [to provide one year’s notice of the intention to surrender]. A decision relating to eligibility or compliance with ancillary provisions of the Land Act, is an anterior decision. If these eligibility or compliance concerns were satisfied, it would lead to an intermediate decision of negotiating terms, and then finally to a decision as to the surrendering of the lease. It follows that, regardless of whether the Refusal Decision is characterised as a decision to refuse the surrender application or a decision to refuse to enter into negotiations, both characterisations satisfy the test in Bond. 
Limb 2 of Tang
[40]	The next question for determination is therefore whether the Refusal Decision conferred, altered, or affected Breakwaters’ rights – the second limb of Tang. 
[41]	In Lock the Gate Alliance Ltd v Minister for Natural Resources and Mines [2018] QSC 021, Bowskill J (as her Honour then was) found that the decision of the Minister under s 318AAV Mineral Resources Act 1989, giving an indication whether the transfer of a mining tenement was likely to be approved, was a decision within s 4 of the Judicial Review Act;  and in doing so, made the following three points: 
(a)	First: The scheme was provided for under the Mineral Resources Act 1989; 
(b)	Second: The decision was “final or operative and determinative” and the approval was “taken to have been given”; and
(c)	Third: The decision to give an indicative approval derived, from the Act’s provisions and had the capacity to affect legal rights and obligations.
[42]	In determining that the decision to give indicative approval affected the applicant’s  legal rights and obligations, Bowskill J also emphasised that the provision’s ‘capacity to affect’ the legal rights of the applicant – in the sense that approval under that provision was deemed approval ‘taken to have been given’ – meant that it had the necessary capacity to affect legal rights for the purpose of the Judicial Review Act. 
[43]	Later, in Fuller & Anor v Lawrence [2023] QCA 257 Bowskill CJ, Morrison and Bond JJA considered whether the direction made pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld)  (“DPSOA”) was a decision made under an enactment within the meaning of the Judicial Review Act. In dismissing the application, their Honours made the following three points relevant to the second limb of Tang: 
(a)	First: The order cannot be divorced from the direction because the supervision order is merely the way in which directions made under the DPSOA are enforceable; 
(b)	Secondly: The expression “the decision must itself… alter or otherwise affect legal rights” as it appears in Tang, was never intended to be confined in the way suggested by the applicant; and 
(c)	Thirdly: The direction did, itself, affect or alter rights. The direction was found to have been under the DPSOA “on the basis that the prisoner the subject of the direction was, at the time the direction was made, obliged to comply with it, without more.”
[44]	With these principles in mind, I am satisfied that properly characterised, the Refusal Decision altered the rights, interests, or obligations of Breakwater for two reasons:
(a)	First: The Refusal Decision clearly had the capacity to affect Breakwater’s legal obligation to occupy the land the subject of 2012 leases because the operational effect of the Refusal Decision was to require Breakwater to continue to hold the leases; and
(b)	Second: The Refusal Decision also clearly had the capacity to relieve Breakwater of this obligation (had the surrender have been granted) - as negotiations would have commenced to detail the surrender. Whilst this interest dissipated with the expiration of the 2012 leases (the next day), it is not a requirement under s 4 of the Judicial Review Act that this interest persist. 
[45]	The answer to question one is therefore yes: I find the Refusal Decision is a decision of an administrative character made under an enactment and it is therefore one to which the Judicial Review Act applies. 
[46]	The more difficult issue for Breakwater is the issue of standing. 
Question 2: Is Breakwater Pacific a person who is aggrieved by the decision? 
[47]	Under s 7 of the Judicial Review Act, an aggrieved person is one whose interests are adversely affected by the decision.  
[48]	The respondent submitted that application should be dismissed on the basis that Breakwater lacked standing as follows:
“The only apparent interest of the Applicant adversely affected by the decision is the Applicant’s interest in the benefits that would flow from the surrender of the lease.  However, in effect, the surrender has now occurred.  The lease expired the day after the decision.  The Applicant is now no longer a lessee.  The lease no longer exists. 
…
Further, any interest that the Applicant might have had in the ancillary benefits flowing from surrender of the lease has now expired as well.  For the reasons outlined above, a surrender only operates prospectively. 
Further, power to approve a surrender only exists while there is a lease in force.  The opportunity for the Chief Executive and lessee to agree on terms of surrender of the lease under s. 327A of the Land Act has now passed because there is now no longer any lease for that section to operate on.” 
[Emphasis added]. 
[49]	The following four principles for determining interests adversely affected by a decision (some of which overlap), emerge from the authorities:
(a)	First: The onus lies on the party seeking to rely on the Judicial Review Act to establish standing. If a person with standing at the outset of a case later loses the interests which gave them that standing and that loss makes the relief they seek useless to them, their case will be stopped; 
(b)	Second: The term ‘a person aggrieved’ is not to be subject to restrictive interpretation. Instead, it is a term of “very wide import” which is intended to facilitate judicial review of administrative decisions made under a wide range of statutes and have a “wide range of practical effects upon members of the community.”;
(c)	Third: Interests that may be adversely affected by a decision may take any of a variety of forms. A non-exhaustive list of these interests includes legal rights, privileges, permissions, or interests; and
(d)	Fourth: The applicant is required to demonstrate genuine affection of interest and that the decision will have an effect on their interests. This “effect” must be different from (beyond) its effect on the public at large.
[50]	A frequently cited and useful decision on the question of ‘standing’ is Unions NSW v New South Wales (2023) 407 ALR 277, where the  High Court relevantly observed as follows: 
“[18] As the standing of a party to seek declaratory relief depends on the sufficiency of the interest of that party in obtaining that relief, a sufficient interest must continue to subsist up until the time at which relief is granted or refused. If, after the commencement of a proceeding, a party ceases to have a sufficient interest in obtaining the relief sought, that party no longer has standing to obtain that relief, the “matter” ceases to exist and, in consequence, the jurisdiction of the Court comes to an end. But that is not to say that the interest must remain the same throughout the proceeding; the nature of a party’s interest may change but still remain sufficient.
…
[21] A plaintiff will have and maintain a real or sufficient interest in obtaining relief if and for so long as they seek a declaration of their own rights, legal interests or liabilities, or if and for so long as the declaration sought will directly affect their rights, legal interests or liabilities. Generally, such a declaration will have foreseeable consequences for the plaintiff because they will be able to legally enforce those rights, interests or liabilities. So, for example, a declaration of invalidity of a law (even where the law has been repealed or amended) may have foreseeable consequences for that plaintiff where such a declaration assists to negative a statutory defence to a common law cause of action such as an intentional tort, or where the plaintiff is being prosecuted for breach of that law. The past infringement of certain personal rights or interests of a plaintiff, such as reputation and liberty, may also be sufficient for seeking declaratory relief even where there are no other asserted legal consequences.”
[Emphasis added]
[51]	More recently, in Johnston v Commissioner of Police [2024] QSC 6, Martin SJA affirmed the legal principles enunciated in Unions and, in considering whether a declaration of invalidity would assist the respondents in vindicating their rights, he made the following relevant observations:   
“[26] At best, the plaintiffs’ concern is whether their past compliance with s 35 was necessary. It can be accepted that the plaintiffs modified their behaviour to comply with the law, and that persons should not be disadvantaged in seeking to challenge the validity of a law because of their compliance with the law. However, unlike the impugned law in Croome , s 35 of the EF Act no longer restricts the plaintiffs’ freedom of action or interferes with their activities. The only advantage that the plaintiffs would achieve from a declaration of invalidity would be the satisfaction of a statement by the Court validating their contentions of an historical wrong. The plaintiffs cannot point to any other foreseeable consequences from the grant of a declaration. There is not a justiciable controversy and not a matter.”
[Emphasis added]
[52]	It follows that there must be a sufficient nexus between standing claimed and the relief sought. 
Breakwater’s argued basis of standing as connected to relief sought  
[53]	Breakwater took a scattergun approach to the issue of standing.  Initially, it made the following points about the Refusal Decision’s adverse effects that flowed from the Refusal Decision: 
(a)	First: It lead to the respondent pursuing Breakwater for rent plus penalty interest and the obligation to pay $391,432.33 which resulted in a significant financial impact on their interests. 
(b)	Second: It affected Breakwater’s existing legal right to occupy the site and its obligation to pay the rent up to 11 October 2022;
(c)	Third: It affected Breakwater’s right to have the leases surrendered on the terms offered on the Department’s form, such terms being prescribed by s 329; and
(d)	Fourth: It affected its legal right to have the surrender accepted or negotiated with a counteroffer.
[54]	Breakwater’s supplementary submissions in reply submitted that the following four “general considerations” are relevant to standing:
(a)	First: The relief sought is not singular, but invites the court to consider relief under all of s 30(l) [of the Judicial Review Act] in a "broad and flexible" manner that suits the "nature and subject matter", and does not concern "the invalidity of legislation" or direction;
(b)	Second: Breakwater challenges the application of provisions of the Land Act which are still in effect, and operate to affect the private commercial dealings between the State of Queensland and Breakwater, and other commercial entities;
(c)	Third: Breakwater is a single commercial entity (not a class of persons), who could be relieved of "a detrimental disadvantage" in relation to a commercial lease over State land "to an extent greater than the ordinary member of the community". Breakwater’s is the only commercial entity whose interests were affected by the Refusal Decision; and asserts its rights, duties or legal interests have been infringed; and
(d)	Fourth: There will be an immediate financial impact on Breakwater, depending on the outcome: if the Refusal Decision is found to be lawful, Breakwater  will have to pay the respondent a sum likely to be around $400,000; but if it is unlawful, this Court can order relief it considers appropriate – which Breakwater submitted includes an order that it be relieved of its obligation to pay the outstanding rent.
[55]	Breakwater pointed to the relief it seeks (as follows) going beyond “validation” or “vindication” and supports a finding of standing: 
(a)	First: An order quashing or setting aside the Refusal Decision [s 30(l)(a)] as “there is a general public interest by other similar commercial entities, particularly in light of both the object being administration of the Land Act … and the admitted controversy between the parties as to whether s 16 applies to  s 327A and the proper procedures and considerations for a lawful decision to be made.”
(b)	Second: An order remitting the Refusal Decision for determination in accordance with law [s.30(l)(b)] because: 
(i)	the respondent admitted in the strike-out application that it was possible the matter be remitted and reversed, such position being recanted for the substantive hearing, but without any authority or real justification.” I reject this submission at the outset. The fact the respondent took a position on the summary strike out application is irrelevant to the issue of standing.
(ii)	there is no restriction in the Land Act on the power of the respondent to surrender at any time, only on the notice of surrender in s 329(1) being given by a “lessee” (so, while a lease is on foot), and therefore no express legislative impediment to the decision being remitted to be made in accordance with law. Breakwater submitted that this is likely due to the Land Act being drafted based on the assumption that effective working / administration involves the evaluation and resolution of a surrender application within its statutorily prescribed period of one year's notice; and 
(iii)	in the absence of express limitation, and particularly given the object of the Land Act, such an interpretation, consistent with effective working administration of land for the benefit of Queenslanders should permit the Refusal Decision to be amended, as occasion requires, even after expiration of a lease, particularly were due to statutory inaction.
(c)	Thirdly: A declaration that Breakwater has the same substantial interests as at the date of the Refusal Decision, due to the tardiness of the respondent in fulfilling its statutory function. 
(d)	Fourthly: An order that provides “Direct Justice” between the parties [s 30(l)(d)] because the Refusal Decision was made the day before the lease expired.
[56]	I reject that any of these matters now give Breakwater standing. The relief sought stems from Breakwater’s gripe with the Delegate’s failure to make a decision in a timely way and the consequences of that delay (being the obligation to pay the outstanding rent).  The failure to make a timely decision may have affected Breakwater’s rights but this is not a matter properly within the ambit of this judicial review. It was previously open for Breakwater to have applied for a statutory order of review as a person aggrieved by the unreasonable delay in the making a decision in this case. But it did not.    
[57]	I am otherwise not satisfied that Breakwater has established that it is a person whose interests are adversely affected by the Refusal Decision for three reasons:
(a)	First: There is a disconnect between the standing argued and the relief sought. Even if I were to direct that the Delegate reconsider the Refusal Decision with the various considerations suggested by Breakwater, and a revised Refusal Decision granting surrender of the 2012 leases was made, it does not follow that the rent owing under the 2012 lease would be waived; 
(b)	Second: The legal rights said to be affected no longer exist. The 2012 leases have expired. In other words, Breakwater has lost the interest which initially made it an entity affected by a decision such that the relief they seek is useless to them; and
(c)	Third: None of the rights or interests alleged to have been affected can be ameliorated or changed by any of the relief claimed. Again, there is a disconnect between a decision of the court and the chief executive’s discretion under s 329(2) to waive one year’s rent. And I am otherwise not satisfied that a declaration that Breakwater is entitled to a waiver of all of the outstanding rent more broadly is available on this review application because that obligation arises from the failure to make the Refusal Decision and not from the Refusal Decision itself.    
[58]	Finally on the issue of standing, Breakwater submitted: 
“… if the same ss. 16 MAUT evaluation and S.327A decision (not to accept/approve) was made within the year after the application was lodged by the Applicant, it would have clearly affected the Applicant's legal rights and obligations, and its substantial interest by affecting the lessee's obligations to pay rent for three years. 
… it is only the Respondent's failure to discharge its statutory duty in a timely fashion which permits the challenges based on the second limb in Tang and substantial interest argument in Unions NSW and Johnson, and for the reasons herein, both should be rejected.”  [Emphasis added]
[59]	But again, this submission overlooks that the timing of the Refusal Decision is not relevant to standing. The test is whether there the applicant’s rights have been affected in a way which can be relieved by the proposed orders. In this case, Breakwater has not demonstrated that its affected interests can be addressed or relieved by the various iterations of relief it seeks. 
[60]	The answer to question two is therefore no: I am not satisfied Breakwater has standing to bring this application for review. 
[61]	Despite this finding, and for completeness, I will briefly address the substantive grounds of review.  
Grounds of Judicial Review 
[62]	The myriad of errors of law, and irrelevant and relevant considerations raised by Breakwater, are layered with some overlap but can be conveniently arranged under the following three grounds:  
(a)	Ground one: The Delegate took into account an irrelevant consideration by finding that the 1984 Agreement Act required a lease to be in place over the land covered by the 2012 leases when any legislatively required lease had expired on 24 March 2015;
(b)	Ground two: The Delegate failed to take into account a number of relevant considerations including:
(i)	the evaluative process required under s  4, s 16(1) under s 16(2)(a) of the Land Act; and
(ii)	the provisions of s 124(4)(a) of the Coastal Protection Management Act, which imposed statutory responsibility on the adjoining freehold land owners for maintaining the western revetment wall; 
(c)	Ground three: The Delegate failed to afford natural justice by failing to take into account the views of interested parties. 
[63]	A mere wrong finding of fact is not an error of law. It follows that a failure to find a particular fact does not necessarily amount to a failure to take into account a relevant consideration.  In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, the High Court distinguished between matters of law and fact relevantly as follows: 
“The grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law.  They are not grounds that are centrally connected with the process of making the particular findings of fact upon which the decision-maker acts.”
[64]	Judicial reviews are not concerned with the merits of the determination. The court will not disturb a decision reached “after a careful consideration of the merits of the particular matter and a review of all of the multiplicity of competing submissions advanced.” 
Relevant mandatory consideration
[65]	In the present case, the parties could not agree on the relevant considerations the Delegate was required by law to take into account.
[66]	Breakwater’s primary submission was that the respondent was required to evaluate the most appropriate use and tenure under s16 of the Land Act but instead of doing this, the respondent wrongly:
(a)	premised its decision upon a non-existent and erroneous legislative requirement for a lease to be in place over the land; and 
(b)	failed to identify relevant considerations in favour of the surrender (including who the lessee should be), in order to move to the next evaluative step and balance those considerations against correct countervailing considerations.   
[67]	On the other hand, the respondent submitted that s 16(1) of the Land Act only contained mandatory considerations for decisions to “allocate land” and not to a case such as the present which involved an application to surrender a lease under 
s 327C(1).   
[68]	The determination of what considerations a decision‐maker must and, conversely, must not take into account in the exercise of a statutory power is a question of the construction of the statute which created the power, including, if necessary, by implication from the subject matter, scope and purpose of the statute. A consideration will be “relevant” if the decision-maker is required by law to take it into account. A consideration will be “irrelevant” if the decision-maker is prohibited by law from taking the consideration into account.  
[69]	I prefer the respondent’s construction and submissions on this issue. 
[70]	I find that the express terms of s 16(1) of the Land Act could only be mandatory considerations for decisions to allocate land and do not apply as such in this case for the following four reasons:  
(a)	First: Chapter 2 of the Land Act is headed “Land Allocation” and Part 1 of that Chapter provides for “allocation powers”.  One of those powers is the power conferred on the Governor-in-Council to grant land in fee simple under s 14.  Section 15 provides the power for the Minister to lease unallocated State land. Section 16, also found within Part 1 of Chapter 2 of the Land Act, is headed “deciding appropriate tenure”;  
(b)	Second: The subject of s 16 is made clear by the introductory words of s 16(1), which states: “before land is allocated under this Act”. It follows that this provision is concerned with providing considerations bearing upon decisions as to the allocation of land;  
(c)	Third: Section 16(1) then provides that “the chief executive must evaluate the land to assess the most appropriate tenure and use for the land”.  Subsection (2) then provides for a number of considerations that the chief executive must take into account when “conducting the evaluation”; and
(d)	Fourth: The Refusal Decision was not a decision allocating land but rather is a decision on Breakwater’s application made under s 327C(1) of the Land Act to surrender the leases.  The land the subject of the leases had already been allocated.  It is only the surrender of the leases that would render that land unallocated.  
[71]	Despite this finding, I am not satisfied (nor did either party submit to the contrary) that it was impermissible for the Delegate to have regard to the considerations in s 16 of the Land Act. But as I have found, those considerations were not mandatory in the sense that the Delegate was required by law to have regard to them – the extent to which the Delegate complied with that section was therefore a matter for her discretion.  
[72]	Breakwater also referred to the Departmental policy, the formal title of which is “Land Allocation: Decision most appropriate use, tenure and management” as being a mandatory consideration. But these Guidelines contain what can only be described as high-level statements with the same characteristics as the considerations in s 4.  This document is a general guideline and not written in precise language. It is not a statute and is not to be construed as if it was, rather to the extent it is relevant it must be read as a whole and in a common-sense way. 
[73]	In oral submissions, it was submitted on behalf of Breakwater that a decision-maker considering “a s 327 surrender” must also consider issues or matters raised by the  overriding motherhood principles in s 4 of the Land Act. Whilst the respondent contended that the mandatory relevant considerations were limited under s 327A, it conceded (and I accept) that at a “high level”, s 4 of the Land Act is a relevant consideration, bearing in mind that given the generic nature and breadth of that section some of the considerations might be thought to be irrelevant to the facts of this case.  
[74]	Because of the high level of generality and susceptibility of different applications depending on the circumstances, it is a matter for the decision-maker, and the process of fact-finding that they adopt as to how those considerations feature in the reasoning.  
[75]	Breakwater also referred to other “applicable mandatory or relevant considerations” said to be found in the Departmental form it completed as part of its surrender application. This form states at the front that “[a]ll applications will be processed having regard  to the requirement of the Land Act and related legislation [in this case said to be the 1984 Agreement Act and the 2006 Agreement Act as well as the Costal Protection Management Act] approved policies and procedures and the requirements of all other agencies with an interest in the land”. This submission overlooks that the form is a generic form applicable to a variety of applications under the Land Act – not just applications for surrender. I do not consider that the mandatory considerations flow from such a form.  But again, I am not satisfied that it was impermissible for the Delegate to have regard any of these considerations. 
Analysis of grounds of review 
[76]	Before turning to the specific grounds of review, it is instructive to address the “evaluate judgment” said to emerge from the recent observations of Hindman J in Fox Coal Pty Ltd and Anor v Minister for Resources [2023] QSC 197, which Breakwater submitted was required but not undertaken by the Delegate in this case.  
[77]	In Fox Coal, the decision-making function required the Minister to base their determination on their assessment of the “public interest” which necessarily was found to involve a “discretionary value judgment” weighing up of factors for and against to determine where the public interest lies.  But in the present case, no such evaluation is required because there is no statutory requirement that the decision be based upon the consideration of the public interest and any required evaluation under s 16(1) is not of the public interest but of the land in question. 
Ground one
[78]	The Delegate referred to the land being “required to have a lease placed over it due to the provisions of the BICA Act and these provisions are still in force.” This observation is said to reveal error because the 1984 Agreement Act did not require a lease beyond 24 March 2015. 
[79]	The starting point is that this contention must be considered in the context of the following well-established principles about the interpretation of reasons for the purpose of judicial review enunciated by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang:  
“A court should not be “concerned with looseness in the language…nor with unhappy phrasing” of the reasons and administrative decision-maker…The reasons for the decision under review are not to be construed minutely and finally with an eye keenly attune to the perception of error.”
These propositions are well settled.  They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.” [Emphasis added]
[80]	With these observations in mind, and also bearing in mind that the passage from the Delegate’s Reasons must also be read in full and in conjunction with the balance of reasons, it is obvious that the Delegate recognised that the 1984 Agreement Act did not itself require a lease of the rock wall beyond 24 March 2015.  Rather, and as the respondent submitted, it is apparent that the Delegate’s reasons expressed an opinion as to State government policy regarding the most appropriate tenure for the land having regard to State legislation providing for the form of that tenure. There is no basis for construing the Land Act as precluded the Delegate from having regard to these matters.
[81]	Breakwater also attacked the Delegate’s Refusal Decision on the basis of a factual error in a check list document submitted to the Delegate.   But it does not follow from the submission of a particular document to a decision-maker containing an error that the decision-maker has made that error themselves.  It is generally not appropriate to assume that the errors contained in the documents have been adopted by the decision-maker. There is no reason to assume to the contrary in the present case.
[82]	Breakwater also argued that the Refusal Decision was made on a fact that did not exist. Namely that with regard to the 1984 Agreement Act, the most appropriate tenure for the land was a lease. The respondent pointed to the controversy in the authorities as to whether or not in addition to establishing that proposition, an anterior proposition must first be established, namely that there was no evidence or other material to justify the making of the decision.  In Pierce v Rockhampton Regional Council, McMeekin J made the following observations about this controversy – which are most apposite to the present case:  
“Indeed a fundamental difficulty with the applicants’ approach is to construe evaluative opinions as objective facts susceptible to review on this ground. Section 24 assumes as a pre-condition of its application that there is in question an administrative decision that depends upon some anterior finding of fact. Where what is in issue is a decision that requires the formation of an opinion - that it is necessary to take land for road purposes - and where that opinion necessarily depends on the holding of a view on matters such as comparative cost and efficiency, as here, underlying which are a myriad of assumptions, it is difficult to see that s 24 has any part to play, beyond ensuring that the requisite opinion indeed exists.” 
[Emphasis added]
[83]	Whether or not that opinion is correct is a matter of opinion rather than fact.  I am not satisfied in this case that it is open to Breakwater to challenge the decision under the no evidence ground on the basis of an assertion that the opinion is wrong.
[84]	Regardless, even if any or all of these criticisms of the Delegate are found to involve a factual error, they do not amount to the taking into account of an irrelevant consideration so as to grant a judicial review in this case.
[85]	I am not satisfied that there is any basis to Ground one.
Ground two
[86]	Breakwater raises a number of “relevant considerations” that were allegedly not taken into account. But there is a disconnect, as Breakwater does establish how those considerations are “relevant” in the required sense.  As I have discussed under the heading “mandatory considerations” above, as a matter of statutory construction I am not satisfied that any of the identified considerations were required to be taken into account. Rather, this is a good example of an allegedly aggrieved applicant attempting to “make an exhaustive list of all the matters which the decision-maker might conceivably regard as relevant, and then attack the decision on the ground that a particular one of them was not specifically taken into account”. That is not a basis for establishing a relevant consideration ground of judicial review.
[87]	I am not satisfied that there is any basis to Ground two.
Ground three  
[88]	Breakwater points to two breaches of the rules of natural justice in this case. Both of these are without merit and can be disposed of in turn.
[89]	The first is that there is a breach of the rules of natural justice by a failure to put the views of “interested parties” before the before the decision-maker. I reject this submission for three reasons:
(a)	First: To such interested party was before court and there is no basis for a conclusion that there were any “interests” of such third parties adversely affected by the decision which would entitle them to natural justice;
(b)	Second: There is no basis for the Court to conclude that these parties suffered any “practical” injustice by reason that any of their views were not taken into account; and therefore, it is not possible to conclude that those third parties were adversely affected by a breach of natural justice; and
(c)	Third: It would not be an appropriate exercise of the Court’s discretion to grant judicial review relief based on an alleged breach of natural justice entitlement owed to a third party who is not party or who does not appear in the present proceedings.
[90]	The second breach of natural justice is on the basis that views expressed by “adjoining body corporates” were not discussed with Breakwater.  
[91]	The principles of natural justice focus on the need for flexibility. What is considered fair in a particular situation “depends on the circumstances and cannot be subject to any fixed body of rules.”  The overarching inquiry is whether an affected person has had a fair opportunity to ‘put their case’, which, in addition to an obligation to disclose adverse allegations, requires decision-makers to disclose issues which are critical to the outcome of a decision when those issues would not otherwise be obvious.  They do not, for example, ordinarily require disclosure of a brief provided by departmental officers to assist a decision-maker in making their decision.
[92]	In the present case, there is no evidence that the Delegate was told anything about what was said at the meeting with adjoining bodies corporate other than what appears in the internal briefing document that was provided to the Delegate as follows:
“Meeting was held with representatives from adjoining body corporates [sic] on 13 July 2022 and they were not aware that Breakwater were looking at surrendering the leases.  A lease was offered to them if they feel benefit in having a right to maintain the rock wall once the lease has been removed but this is not critical to the surrender or expiration of the lease.”
[93]	I am not satisfied that there is any merit in ground three for two reasons:
(a)	First: There is nothing in the description of the meeting with the adjoining bodies corporate that could be said to be adverse or prejudicial to Breakwater’s application to surrender; and
(b)	Second: There is no reason why natural justice required that this briefing note be disclosed to Breakwater before the decision was made. Nor is there any evidence of anything else that was said by the “adjoining body corporates” that could be called “adverse” requiring disclosure so as to comply with natural justice.
[94]	The answer to question three is therefore no: I am not satisfied Refusal Decision was an improper exercise of power by the Delegate.
Relief Sought 
[95]	It is necessary to return to the relief sought by Breakwater in this case – which is analysed in some detail under the discussion about standing earlier in these reasons. 
[96]	The primary relief sought is an order quashing or setting aside the Refusal Decision on a date prior to when the decision was made. I am not satisfied such an order is even possible (or in any way appropriate in this case even if it was) for two reasons: 
(a)	First:  Such an order could only quash or set aside the legal effect of the legal consequences of the decision under review;  and
(b)	Second: A quashing or setting aside order could only operate from the date that the decision was made at the earliest.
[97]	Much of the relief is directed at the outstanding rent being waived or forgiven. But as I have set out in paragraph 57 (a) and (c), I am not satisfied that this relief appropriately follows from the Refusal Discretion or that this court has any power to make such orders in this case.  
[98]	The remainder of the relief sought is for orders prescribing in detail how any further decision should be made (including to direct justice between the parties) and otherwise variously requiring particular decision-making outcomes by order or by declaration. But I reject this approach is appropriate for three reasons:
(a)	First:  Breakwater’s submissions underpinning the direct justice relief, relate to a complaint about the failure to make a decision as opposed to the Refusal Decision itself. As discussed in paragraph 56 above, this is not a proper basis for judicial review;
(b)	Second: It is well-established that it is not for the courts on a judicial review to direct administrative decision-makers as to how those decision-makers exercise their discretions.  If there is one decision lawfully open to a decision-maker, a Court may, on judicial review, grant relief forcing the decision-maker to make a particular decision.  But in light of the confined decision-making legislative requirements in this case, I am not satisfied that various outcomes which Breakwater seeks to impose upon the Delegate are the only options lawfully open to her; and
(c)	Third: The 2012 leases have expired and there is no lease that could be the subject of any surrender.  It follows that any jurisdiction to make a decision on Breakwater’s application for a surrender has now expired and a direction that the decision be made again in any particular way, or at all, would require the chief executive or Delegate to act unlawfully.
[99]	It follows that even if any of the grounds for judicial review were made out in this case it would be inappropriate for any of the relief sought by Breakwater to be granted.
Orders
[100]	The application for judicial review is dismissed. I will hear the parties on costs.