Badger v Bayside City Council - [2022] VSC 140

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 00635

KEITH BADGER	Plaintiff
v
BAYSIDE CITY COUNCIL	Defendant

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JUDGE:	John Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 March 2022
DATE OF JUDGMENT:	23 March 2022
CASE MAY BE CITED AS:	Badger v Bayside City Council
MEDIUM NEUTRAL CITATION:	[2022] VSC 140

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STATUTES – Delegated legislation – Interpretation – Whether erecting corflute sign by cable ties constitutes ‘development’ or ‘use’ – Meaning of ‘event’ and applicable time limit for display of signs – Planning and Environment Act 1987 (Vic) Pt 2 – Bayside Planning Scheme cl 52.05.

CONSTITUTIONAL LAW – Implied freedom of political communication – Validity of delegated legislation – Whether Bayside Planning Scheme cl 52.05 effectively burdened freedom – Whether cl 52.05 reasonably appropriate and adapted to serve a legitimate end – Whether necessary to reach constitutional question – Whether live controversy exists once interpretation question resolved.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Evans QC with Ms V Bell	Adley Burstyner
For the Defendant	Mr E Nekvapil with Ms K Brown	Maddocks

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Background facts................................................................................................................................ 1

Principles applying............................................................................................................................ 5

Issues for determination................................................................................................................. 10

Does clause 52.05 apply?................................................................................................................. 10

Is the sign exempt from requiring a permit?.............................................................................. 17

Further construction issue.............................................................................................................. 21

Implied freedom of political communication............................................................................ 22

Relief................................................................................................................................................... 26

HIS HONOUR:

Introduction

It is notorious that there will be a Federal Election in 2022, however the writs are yet to issue. It is also well understood that, subject to limitations, the precise date for a Federal election, and its precise format, are within the discretion of the Prime Minister. Plainly legitimate campaigning for the forthcoming election has been underway for some time. It has long been a practice for candidates for an election, whether federal, state or local, to publicise their candidacy by the use of signs located on private property.

The municipality of the defendant, Bayside City Council (‘Bayside’), falls within House of Representatives Electorate of Goldstein. Ms Zoe Daniel has declared that she will stand as a candidate for this seat. The plaintiff, Mr Keith Badger, is her campaign director and a resident of Brighton in Bayside. Mr Badger contended, self-evidently, that name recognition within the electorate is critical for a candidate, new to politics, running without the backing of a major political party, and against an incumbent from a major party. A key strategy adopted by Ms Daniel’s campaign is to ‘produce signage to be displayed by supportive individuals on their properties within the electorate’, which are known in the vernacular as ‘yard signs’.

This proceeding concerns the manner in which the right of an occupier of land within Bayside to display a yard sign on their land is regulated by law. The regulating provisions are found in the Bayside Planning Scheme (‘Scheme’).

Background facts

Before any signs were erected, enquires were made of Bayside who responded that election…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] VSC 140
Decision Date: 23 March 2022

CaseChat Overview and Summary

In Badger v Bayside City Council, the plaintiff, Badger, sought judicial review of a decision by the Council to remove a sign erected by him. The sign, made from corflute and secured by cable ties, was displayed on his property. The dispute centred on the interpretation of the Bayside Planning Scheme, specifically clause 52.05, which restricts the use of signs without a permit. Badger argued that the sign did not constitute ‘development’ or ‘use’ as defined by the Planning and Environment Act 1987, and that the sign’s temporary display did not constitute an ‘event’ triggering the time limits for sign display.

The court was required to interpret clause 52.05 to determine whether Badger's sign qualified as a prohibited ‘development’ or ‘use’. Additionally, the court had to consider whether the clause's restrictions on sign display were necessary and appropriate in light of the implied freedom of political communication under the Australian Constitution. The court also needed to decide if it was necessary to reach the constitutional question, given that the interpretation issue could resolve the case.

The court found that the sign did not constitute ‘development’ or ‘use’ under the Planning and Environment Act, as it was not permanent or substantial in nature. Consequently, the restrictions imposed by clause 52.05 did not apply. The court did not need to consider the constitutional issue since the interpretation of the planning scheme was sufficient to resolve the case. The decision was in favour of Badger, and the sign was allowed to remain.

The final orders of the court included a declaration that the sign did not constitute ‘development’ or ‘use’ under the Planning and Environment Act, and that clause 52.05 did not apply to the sign. The court also ordered the Council to cease its enforcement actions against Badger regarding the sign.

Orders