Boerkamp v The Hon Matthew Guy

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW & APPEALS LIST

No. S CI 2013 01140

WILHELMUS ANTONIUS JOANNES BOERKAMP	Plaintiff
v
THE HONOURABLE MATTHEW JASON GUY in his capacity as Minister for Planning	Defendant

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JUDGE:	EMERTON J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 October – 8 November 2013.
DATE OF JUDGMENT:	14 April 2014
CASE MAY BE CITED AS:	Boerkamp v The Hon Matthew Guy
MEDIUM NEUTRAL CITATION:	[2014] VSC 167

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ADMINISTRATIVE LAW – Standing – Challenge to the Minister’s decisions to exercise the power on intervention pursuant to s 20(4) Planning & Environment Act 1987 (Vic) and to prepare, adopt and approve a planning a scheme amendment – Plaintiff seeks declaratory and injunctive relief concerning the Minister’s compliance with the requirements of the Planning & Environment Act 1987 (Vic) - Whether the plaintiff has a special interest in the subject matter of the action –Plaintiff was a party to proceedings in the Victorian Civil and Administrative Tribunal - Whether the plaintiff had standing to bring the Tribunal proceeding as an objector pursuant to s 82(1) of the Planning & Environment Act 1987 (Vic) - Whether the plaintiff was a person who may be affected by the grant of a permit by reason of his recreational use of the area, environmental activism and commercial interests in the Yarra Valley - Whether the plaintiff’s interest as a party to proceedings in the Victorian Civil and Administrative Tribunal is sufficiently connected to the relief sought in the proceeding – Plaintiff held to have a special interest in the subject matter of the action - ss 17, 18, 19, 20(4), 57 and 82 of the Planning and Environment Act1987 (Vic) - Australian Conservation Foundation Inc v The Commonwealth (1980) 146 CLR 493 - Allan v Transurban City Link Limited (2001) 208 CLR 167 - Batemans Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Morris QC Ms Meg O’Sullivan	Hall and Wilcox
For the Defendant	Mr J Pizer SC Mr B Chessell	Department of Transport, Planning and Local Infrastructure Legal.

TABLE OF CONTENTS

Introduction......................................................................................................................................... 2

Minister’s reasons for intervention................................................................................................. 5

The present proceeding.................................................................................................................... 6

Principles governing standing......................................................................................................... 8

Special interest (a): as a party to the tribunal proceeding......................................................... 11

Who may seek review by the tribunal?................................................................................... 11
Was the plaintiff affected by the grant of a permit for the Yering development?............ 21

Recreational use of the Yarra Valley and environmental activism........................................... 22
Commercial interests................................................................................................................ 25
Conclusion............................................................................................................................... 30

Was the tribunal proceeding an abuse of process?............................................................... 30
Is the plaintiff’s interest connected to the relief sought in the proceeding?...................... 33
Conclusion on ‘special interest’ (a): the second tribunal proceeding................................. 36

Special interest (b): environmental interests............................................................................... 37

Special interest (c): commercial interests...................................................................................... 39

Conclusion......................................................................................................................................... 40

HER HONOUR:

Introduction

The Eastern Golf Club is moving from Doncaster to Yering. It has sold its Doncaster land, and proposes to build a new golf course and recreational facility in Yering (the ‘Yering development’). The Yering development is to be carried out on a parcel of rural land owned by the Club comprising approximately 245 hectares and bounded by the Yarra River to the west. Part of the land is located within the Yarra River floodplain and, prior to 8 February 2013, the land was located in a Green Wedge Zone under the Yarra Ranges Planning Scheme.

On 5 July 2009, the Yarra Ranges Shire Council decided that a permit should issue for the Yering development (the ‘Council’s first decision’). The plaintiff and a local environmental group known as Healesville Environmental Watch Inc (‘HEWI’) successfully appealed the Council’s first decision to the Victorian Civil and Administrative Tribunal (the ‘first tribunal proceeding’). On 17 December 2010, the tribunal set aside the Council’s first decision, principally on the ground that access and egress arrangements in the event of a 100 year flood were inadequate. However, the tribunal indicated that, had it decided to grant a permit, it would have imposed more stringent conditions than those that formed part of the Council’s first decision.

In about November 2011, the Club made a further application for a permit for the Yering development. On 15 December 2011, the plaintiff wrote to the Council setting out his objections to the grant of a permit. However, on 25 September 2012, the Council issued a notice of intention to grant a permit permitting use and development of the land in the manner proposed but subject to no less than 146 permit conditions (the ‘Council’s second decision’).

On 19 October 2012, the plaintiff applied to the tribunal for review of the Council’s second decision (the ‘second tribunal proceeding’). However, before the second tribunal proceeding could be heard and determined, the defendant, as Minister for Planning, exercised power under s 20(4) of the Planning and Environment Act1987 (Vic) (the ‘PE Act’) to exempt himself from the requirements of ss 17, 18 and 19 of the PE Act and prepared, adopted and approved Amendment C130 to the Yarra Ranges Planning Scheme which, among other things, removed the need for the Club to obtain a permit for the Yering development.

Amendment C130 rezones the land from a Green Wedge Zone[1] to a Special Use Zone[2], and incorporates in the Yarra Ranges Planning Scheme a document entitled ‘Eastern Golf Course Yering, February 2013’ (the ‘Incorporated Document’) to guide the use and development of the land without the need for a permit. The Incorporated Document provides for the use and development[3] of the land, the conditions to which the permitted use and development is subject, the plans of the permitted development and the designated development envelope. What is permitted is described as follows:

Use and development of the land for Outdoor recreation facility (golf course), Restricted recreational facility and Function centre, Crop raising (turf farm), a limited licence for the function room and golf carts and full club licence for the Club House, buildings and works associated with a Dwelling and Group accommodation, the removal of vegetation and the erection of advertising signage.

[1]Schedule 4.

[2]Schedule 9.

[3]And related matters.

There then follow the conditions to which the permitted use, development and related matters are subject, which are in near identical form to the conditions imposed by the Council in the Council’s second decision.

As a result of the Minister’s intervention, on 11 February 2013, the tribunal made an order by consent setting aside the Council’s decision to grant a permit for the Yering development. In light of Amendment C130, however, the tribunal’s order did not prevent the Club from proceeding with the Yering development. Indeed, Amendment C130 facilitated the Yering development and the Club’s proposed relocation from Doncaster to Yering.

The plaintiff has commenced this proceeding challenging the Minister’s decision to intervene and to prepare, adopt and approve Amendment C130. He seeks declarations that the decision of the Minister made pursuant to s 20(4) of the PE Act (the ‘s 20(4) decision’) and the Minister’s decision to approve Amendment C130 (the ‘Amendment decision’) were made contrary to law and are invalid, void and of no legal effect. He seeks a further declaration that Amendment C130 and those parts of the Yarra Ranges Planning Scheme which derive from Amendment C130 are invalid, void and of no legal effect, and an injunction directing the Minister to reconsider the s 20(4) decision and the Amendment decision.

In his defence,[4] the Minister contends that the plaintiff does not have standing to seek or obtain the relief claimed in the statement of claim because the plaintiff does not have, and has not had, any special interest in the validity of Amendment C130.
[4]Dated 22 April 2013.

In his amended reply,[5] the plaintiff asserts that he has had and continues to have a special interest in the validity of Amendment C130 by reason of the following:

(a)He was a party to the second tribunal proceeding which was made redundant by Amendment C130;
(b)He has a special interest in the environment of the Yarra Valley region, in the water quality of the Yarra River and in the quality of Melbourne’s drinking water; and
(c)He owns or controls business assets in the Yarra Valley region which may be affected by Amendment C130.

[5]Dated 2 July 2013.

On 13 May 2013, the Court ordered that, pursuant to rule 47.04 of the Supreme Court (General Civil Procedure) Rules 2005, the following question in the proceeding be tried before the trial of the proceeding (having regard to such relevant and admissible evidence as may be adduced):

Does the plaintiff have standing to seek or obtain the relief claimed in the statement of claim?

For the reasons below, I have concluded that the plaintiff has standing to seek the relief claimed.

Minister’s reasons for intervention

The Minister’s reasons for his decision to exercise the power of intervention pursuant to s 20(4) of the PE Act were given in writing on 6 February 2013 (the ‘Minister’s reasons’). They outline the sequence of permit applications, objections and tribunal proceedings described above and record that the Club, with the support of Council, requested the Minister to prepare, adopt and approve an amendment to the Yarra Ranges Planning Scheme that would allow the use and development of the golf club, turf farm and associated uses (that is, the Yering development) to proceed without a permit, subject to the use and development complying with the Incorporated Document.

The Minister’s reasons confirm that the conditions in the Council’s notice of decision (the Council’s second decision) have been directly translated into the Incorporated Document.

According to the Minister’s reasons, Amendment C130 will provide for the fair, orderly, economic and sustainable use and development of land in accordance with s 4(1)(a) of the PE Act. The proposed use and development will attract additional tourism to the Yarra Ranges, provide recreation facilities for the local community and protect native vegetation, thus producing significant economic, environmental and community benefits. Further, the development of the site for a golf course will allow for the former golf course site in Doncaster to be redeveloped for infill housing, providing benefits to Greater Melbourne.

The Minister’s reasons refer to the need to ensure that the proposed use and development can proceed in a timely manner and to avoid the parties incurring ‘potentially significant costs and delays associated with the second VCAT hearing’. The reasons state:

Extensive consultation has already taken place with parties potentially affected by the proposed use and development, including Melbourne Water. Given the extensive amount of work undertaken by the proponent and its consultants to ensure that potential impacts of the proposed use and development on the environment and nearby Yarra River and its environs are adequately addressed, it is highly unlikely that any further consultation in relation to the amendment would result in any significant changes to the amendment. The exemption will therefore avoid unnecessary duplication of process.[6]

[6]Minister’s Reasons, [16].

As to the s 20(4) decision, the Minister expressed himself to be satisfied that compliance with any of the requirements of ss 17, 18 and 19 of the PE Act and regulations was not warranted because:

The proposal has been the subject of extensive public notice and consultation pursuant to the two permit applications and the VCAT proceeding, and the views of affected parties are well known and have been reasonably considered. The issues raised in the public consultation processes have been considered and addressed by way of conditions in the Incorporated Document.[7]
[7]Ibid [22].

The present proceeding

This is a proceeding commenced by writ and statement of claim dated 8 March 2013 in which the plaintiff seeks the following relief:

(a) Declarations that the s 20(4) decision and the Amendment decision were made contrary to law and are invalid, void and of no legal effect.

(b) A declaration that Amendment C130 and those parts of the Planning Scheme which derive from Amendment C130 are invalid, void and of no legal effect.

(c) An injunction directing the Minister to reconsider the s 20(4) decision and the Amendment decision and in doing so, to exercise his powers pursuant to s 20(4) and s 35 of the PE Act according to law.

The plaintiff alleges that the s 20(4) decision was unreasonable in the Wednesbury[8] sense having regard to a number of factors, including the absence of any plausible basis or probative material to form the necessary opinions under s 20(4), and that the s 20(4) decision was made in breach of an implied limitation on the exercise of the power in s 20(4) corresponding to the limitation in sub-clause 58(3) of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) relating to the timing of the exercise of the call-in power.
[8]Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

The plaintiff further contends that:

(a) in making the decision to prepare Amendment C130, the Minister failed to take into account relevant considerations under s 12(2) of the PE Act, namely, the significant effects Amendment C130 might have on the environment and the significant effects the environment might have on the use and development envisaged by Amendment C130;

(b) in making the decision to adopt and approve the Amendment C130, the Minister failed to take into account relevant considerations because Amendment C130 is inconsistent with the approved Yarra Valley Regional Strategy Plan made pursuant to Part 3A of the PE Act and with the transport system objectives and decision-making objectives in the Transport Integration Act 2010 (Vic); and

(c) in making the decision to approve Amendment C130 the Minister failed to comply with s 46F of the PE Act in that Amendment C130 is inconsistent with the approved Yarra Valley Regional Strategy Plan. The plaintiff further contends that, insofar as Amendment C130 effects an amendment to the Regional Strategy Plan, s 46D of the PE Act required approval by resolution of each House of Parliament, which the Minister failed to obtain.

In argument before the Court, the plaintiff foreshadowed that he would seek leave to agitate a further ground of review based on Part 3AA of the PE Act on the basis that Amendment C130 had the effect of altering or removing controls over the subdivision of green wedge land to allow the land to be subdivided into more lots than permitted by the Yarra Ranges Planning Scheme, which alteration required ratification by resolution of each House of Parliament pursuant to s 46AG of the PE Act. Again, no such ratification was obtained.

The grounds based on the transport system objectives and the decision-making objectives in the Transport Integration Act 2010 (Vic) arise, according to the plaintiff, because one of the reasons for intervention given by the Minister was to facilitate the development of the Doncaster site. The development of the Doncaster site for medium density housing has transport implications.

This submission is supported by the explanatory report for Amendment C130 (‘the explanatory report’). It describes Amendment C130 as having been made at the request of the Club for the following purpose:

The amendment is required to facilitate the timely relocation of the Eastern Golf Club from its site at 473 Doncaster Road, Doncaster [the Doncaster site] so as to enable the Doncaster site to be developed for urban purposes and to develop the Land for a major recreation facility and associated purposes.

In response to the question, ‘How does the amendment implement the objectives of planning in Victoria?’ the explanatory report states:

The development of the Doncaster site for urban purposes will implement urban consolidation and activity centre policy on a site with an area of 47 hectares adjacent to the Doncaster Principal Activity Centre.

The explanatory report also states that Amendment C130 is consistent with ‘Minister’s Direction Number 9 – Metropolitan Strategy’ in facilitating the timely urban development of the Doncaster site by locating a significant amount of new housing in or close to activity centres and strategic redevelopment sites that offer good access to services and transport.

However, in respect of the requirements of the Transport Integration Act 2010, the explanatory report states that no relevant requirements of that Act are applicable.

Principles governing standing

In order to have standing to seek and obtain relief in this proceeding, the plaintiff must demonstrate a special interest in the subject matter of the proceeding. The subject matter of this proceeding is the lawfulness of the Minister’s decision to intervene and to approve Amendment C130, which removed the need for the Club to obtain a permit for its proposed development in Yering. The principal subject matter of the proceeding is the validity of Amendment C130.

In Australian Conservation Foundation Inc v The Commonwealth,[9] the High Court held that an ordinary member of the public, who has no interest other than that which any member of the public has in upholding the law, has no standing to sue to prevent the violation of a public right or to enforce the performance of a public duty.[10] Chief Justice Gibbs said:

The assertion of public rights and the prevention of public wrongs by means of those remedies [the making of a declaration and the grant of an injunction] is the responsibility of the Attorney-General, who may proceed either ex officio or on the relation of a private individual. A private citizen who has no special interest is incapable of bringing proceedings for that purpose, unless, of course, he is permitted by statute to do so.[11]

[9](1980) 146 CLR 493 (the ‘ACF Case’).

[10]Ibid 526.

[11]Ibid.

When describing the nature of a ‘special interest’, his Honour said:

I would not deny that a person might have a special interest in the preservation of a particular environment. However, an interest, for present purposes, does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails. A belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. If that were not so, the rule requiring special interest would be meaningless. Any plaintiff who felt strongly enough to bring an action could maintain it.[12]

[12]Ibid 530 – 531.

Accordingly, the plaintiff must show that he has more than an intellectual or emotional concern about the lawfulness of the s 20(4) decision and the Amendment decision, and that he will gain more than simply the satisfaction of righting a wrong if he succeeds in obtaining the relief sought.

The Minister submitted that the Court should adopt a three stage process when considering whether any of the plaintiff’s claimed interests are sufficient to give him standing. At the first stage, the Court must determine whether the plaintiff holds the interest that he claims and whether that interest is a relevant one; at the second stage, the Court must determine whether there is a sufficient nexus between the claimed interest and the decisions under challenge; and at the third stage, the Court must determine whether there is a sufficient nexus between the relief sought in the proceeding and the interest relied upon by the plaintiff.

In respect of the third stage, the Minister relies on a passage in the judgment of Aickin J in the ACF Case in which his Honour said:

In my view the authorities to which I have referred above establish that it is an essential requirement for locus standi that it must be related to the relief claimed. The “interest” of a plaintiff in the subject matter of an action must be such as to warrant the grant of the relief claimed. … What is required is that the plaintiff’s interest should be one related to the relief claimed in the statement of claim. [13]

[13](1980) 146 CLR 493, 511.

Likewise, in Onus v Alcoa of Australia Ltd,[14] Brennan J said as follows:

At least the plaintiff must be able to show that success in the action would confer on him – albeit as a member of a class – a benefit or advantage greater than the benefit or advantage thereby conferred upon the ordinary member of the community; or alternatively that success in the action would relieve him of a detriment or disadvantage to which he would otherwise have been subject – albeit as a member of a class – to an extent greater than the ordinary member of the community.[15]

[14](1981) 149 CLR 27.

[15]Ibid, 75-76.

These principles are largely uncontroversial. The plaintiff’s claim to have a special interest in the proceeding by reason of (a) being a party to the second tribunal proceeding; (b) his interest in the environment of the Yarra Valley; and (c) his commercial interests in the Yarra Valley will be considered having regard to whether the plaintiff holds the interest that he claims and whether that interest is a relevant one; and whether there is a sufficient nexus between the claimed interest, the decisions under challenge and the relief sought in the proceeding.

Special interest (a): as a party to the tribunal proceeding[16]

[16]The relevant tribunal proceeding is the second tribunal proceeding. This was an application for review of the Council’s second decision.

The plaintiff submits that the Minister’s decision to intervene and the approval of Amendment C130 affected his interests in a way that was quite different from its effect on other persons because it denied him the opportunity, and the statutory right, to have his application for review heard and determined by the tribunal.[17]
[17]He relies on Sinclair v Maryborough Mining Warden (1975) 132 CLR 473, which he contends stands for the proposition that a person who has a statutory right to be heard before a decision is made has standing to bring proceedings to require the observance of the relevant provision.

The Minister submits that the plaintiff was not a valid objector under the PE Act, and that he therefore had no legal right to bring the second tribunal proceeding and has no statutory right to have the second tribunal proceeding heard and determined. In substance, the Minister contends that the plaintiff has not been denied a lawful opportunity to have the second tribunal proceeding heard and determined because he had no right to bring the second tribunal proceeding in the first place.

Who may seek review by the tribunal?

Section 82(1) of the PE Act permits an objector to apply to the tribunal for review of the decision of the responsible authority to grant a permit.[18] The plaintiff purported to object to the grant of the permit for the Yering development and subsequently applied to the tribunal under s 82(1) for review of the Council’s second decision. The second tribunal proceeding was regularly instituted in accordance with the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (the ‘VCAT Act’).
[18]Section 82 further provides:
(2)A planning scheme may set out classes of applications for permits the decisions on which are exempted from sub-section (1).
(3)If a planning scheme exempts a decision of an application for a permit from sub-section (1), an application for review cannot be made under that sub-section in respect of that decision.

However, according to the Minister, only a valid objector may apply to the tribunal under s 82(1) of the PE Act, and the plaintiff was not a valid objector. The Minister submits that, as a matter of basic statutory construction, an objector is a person who was entitled to and did make an objection under s 57(1). The word ‘objector’ is used in its ordinary and natural meaning and, when it appears in s 82(1), it must be taken to be a reference to a person who was entitled to and did make an objection under s 57(1). This would exclude a person who was not entitled to but purported to make an objection under that provision.

Section 57(1) provides that ‘[a]ny person who may be affected by the grant of the permit may object to the grant of a permit.’ The Minister submits that, for a person to be ‘affected’ by the grant of the permit for the purposes of s 57(1), there must be a link between the person and the proposal for which the permit is sought. The effect on the person of the permit being granted must:

(a)be genuine and demonstrable;
(b)set the person apart from other members of the public; and
(c)not be too remote.[19]

[19]Citing Byron Environment Centre v Arakwal People (1997) 78 FCR 1, 7, 43 and Chadband v Murrundindi SC [2005] VCAT 1039, [11].

Thus, according to the Minister, a person is not a person ‘who may be affected by the grant of the permit’ if they have only an intellectual, moral or emotional concern about the proposal, or if they are properly characterised as a ‘busybody or someone with a barrow to push’.[20]
[20]Referring again to Chadband v Murrundindi SC [2005] VCAT 1039, [11].

The Minister submits that the plaintiff was not a person capable of being affected by the grant of the permit for the Yering development because he neither lived nor owned land in Yering or in the Yarra Ranges municipality and had no other relevant interest in the proposal. His claimed interest in the environment, even if genuine, was in the nature of an intellectual, moral or emotional concern.

The Minister also alleges that the plaintiff’s real reason for making the objections and for participating in both tribunal proceedings was to secure some prospect of acquiring the Club’s Doncaster land in circumstances where it seemed destined to be sold to a competitor. It is alleged that, by lodging the objection, the plaintiff was trying to bring about a situation in which he might be able to take the ‘prize’ of the Doncaster land, in effect by holding the Club to ransom using the legal system to create crippling delays. The Minister’s counsel took the Court to evidence that the plaintiff offered to withdraw his objection to the issue of the permit should the Doncaster land be sold to him. The Minister submits that in truth, therefore, the plaintiff is properly to be characterised as a person with a commercial barrow to push, rather than as a person directly or indirectly affected by the grant of the planning permit for the Yering development.

The plaintiff responds that his right to bring the tribunal proceeding arose because he was an objector ‘in fact’. According to the plaintiff, to bring a proceeding in the tribunal as an objector, it is sufficient to be an objector ‘in fact’ and it is not necessary to be an objector ‘in law’.

The plaintiff further submits that even if it were necessary to be a ‘valid’ objector or an objector ‘in law’, the test is a very weak test, allowing a broad range of persons to qualify and that, on the evidence, the plaintiff clearly did qualify. He contends that the standing rule articulated in the ACF Case is not the test for determining who is a valid objector for the purposes of s 82(1) of the PE Act.

The plaintiff’s submission that the test in the ACF Case is not necessarily the test for a valid objection under the PE Act is supported by High Court authority. In Allan v Transurban City Link Limited,[21] Mr Allan, who owned property close to a proposed toll road, applied under the Development Allowance Authority Act 1992 (Cth) as a person ‘affected by a reviewable decision’ for review of the decision of the Development Allowance Authority to issue a certificate to a (road building) corporation in respect of moneys to be borrowed for the construction of the toll road. The High Court held that whether a person is ‘affected by a reviewable decision’ for the purposes of the relevant provision of the Development Allowance Authority Act was to be determined by reference to the subject-matter, scope and purpose of that Act, rather than by the application of decisions under general law regarding the interest required to obtain various common law, equitable and constitutional remedies.[22] What serves to identify a person as one affected by a reviewable decision will vary having regard to the nature of the reviewable decision itself.[23]
[21](2001) 208 CLR 167.
[22]Ibid, 174.
[23]Ibid.

The plaintiff therefore submitted that what was meant by ‘any person who may be affected’ by the grant of a permit in s 57(1) of the PE Act could only be understood having regard to the scope, purpose and objectives of the PE Act. He submitted that, even if s 82(1) required an objector to be an objector ‘in law’ (or a ‘valid’ objector), the scope of s 57(1) was so broad as to include him.

I accept the plaintiff’s submission that the PE Act contains its own signposts for ascertaining who is a person who ‘may be affected’ by the grant of a permit and, therefore, who is or is not an objector for the purpose of s 82(1) of the PE Act.

The starting point is s 4 of the PE Act, which describes the objectives of both planning in Victoria and the planning framework established by the PE Act. The objectives of planning include securing a pleasant, efficient and safe working, living and recreational environment for all Victorians and visitors to Victoria.[24] Plainly, all Victorians have an interest in the achievement of this objective. The objectives of the planning framework established by the PE Act include ensuring that persons affected by proposals for the use, development or protection of land (or changes in planning policy or requirements) receive appropriate notice[25] and providing an accessible process for the just and timely review of decisions[26].
[24]Section 4(1) of the PE Act.
[25]Section 4(2)(i) of the PE Act.
[26]Section 4(2)(j) PE Act.

Participation in planning processes, including permit applications, is generally encouraged and facilitated by the PE Act. Part 3 contains mechanisms for public participation in planning scheme amendments; Part 4 contains a regime for participation in the grant of planning permits and for the review of permit decisions by the tribunal.

Consistently with the notice objective in s 4(2), but arguably with a broader purpose and reach, s 51 of the PE Act requires permit applications to be made available to the public during office hours free of charge. The requirement to make documents relating to permit applications publicly available extends to objections and decisions made by the responsible authority.[27]
[27]Section 59 of the PE Act. Section 70 of the PE Act provides that the responsible authority must make a copy of every permit that it issues available at its office for inspection by any person during office hours free of charge.

Section 52 imposes notice requirements for permit applications. Section 52(1) requires notice of a permit application to be given to specified persons, including immediate neighbours and, pursuant to paragraph (d), ‘to any other persons’, if the responsible authority considers that the grant of the permit may cause ‘material detriment’ to them. Pursuant to s 52(2), notice to such persons may be given by placing signage on the land or by publication in newspapers generally circulating in the area in which the land is situated. The reach of these forms of notice suggests that the words ‘material detriment’ are not to be read restrictively.

Furthermore, s 52(3) provides that the responsible authority may give any further notice that it considers appropriate of an application for use or development ‘which is likely to be of interest or concern to the community’. The PE Act therefore contemplates that notice of a permit application will be given in circumstances where there is likely to be interest in or concern about the proposal for which a permit is sought in the relevant community. The reference to ‘any further notice’ in s 52(3) makes plain that the pool of persons to whom notice may be given on the basis of such interest or concern extends beyond the owners of adjoining land and persons to whom the proposal may cause ‘material detriment’. It extends to persons in the community who may simply be interested in or concerned about the proposal, that is, persons who might otherwise be described as having ‘a mere intellectual or emotional concern.’ The purpose of giving notice to those persons must be to allow them to participate in the permit application process, that is, to make objections and seek review of the permit decision if appropriate.

The plaintiff submitted that what constitutes ‘the community’ for the purpose of s 52(3) will be influenced by the nature of the proposal. A dual occupancy development is likely to be of interest or concern to a community in the sense of the local community. However, where the development is more significant, the relevant community might be the municipal or regional community, or, indeed, the Melbourne or Victorian community. In this case, the application would engage the regional community, that is, the community of the Yarra Valley region. It might also embrace the State community, because the Yarra Valley is regarded as one of the treasures of the State.

I accept this submission insofar as it emphasises that the community in question is to be identified having regard to the nature of the proposal and its possible impacts. In my view, s 52(3) contemplates that notice of a planning application be given to persons in ‘communities’ of different types and sizes depending on the nature of the proposal, and on the basis of likely interest in or concern about a proposal within the relevant community. Furthermore, having regard to the fact that the responsible authority may have to consider wide-ranging matters when deciding upon a permit application, including the environmental effects of the proposal and ‘any significant social and economic effects of the use or development for which the application is made’,[28] persons interested in or concerned by a proposal might well wish to make submissions on issues of this kind, and the scheme of the PE Act appears to provide for them to do so.
[28]Section 60(1)(f) of the PE Act.

In this context, s 57 relevantly provides:

(1)Any person who may be affected by the grant of the permit may object to the grant of a permit.
…
(2)An objection must be made to the responsible authority in writing stating the reasons for the objection and stating how the objector would be affected by the grant of the permit.
(2A)The responsible authority may reject an objection which it considers has been made primarily to secure or maintain a direct or indirect commercial advantage for the objector.
(2B)If an objection has been rejected under sub-s (2A) this Act applies as if the objection had not been made.
…
(5)The responsible authority must make a copy of every objection available at its office for any person to inspect during office hours free of charge until the end of the period during which an application may be made for review of a decision on the application.

Section 57(1) is couched in terms that are both broad and apparently simple. The use of the words ‘any person’ (as opposed to ‘a person’) is suggestive of inclusion rather than exclusion and that the provision is not to be construed as imposing a high bar to participation in the planning process, particularly in the light of the notice requirements discussed above and the range of matters to which the responsible authority must or may have regard under s 60 of the PE Act.

Viewed in the context of the PE Act as a whole, the word ‘affected’ in s 57(1) must be construed broadly. The PE Act extends a generous invitation to participate in both the planning scheme and planning scheme amendment processes and the permit and permit amendment processes, and the test for who is or may be ‘affected’ by the grant of a planning permit should not be narrowly drawn. The PE Act distinguishes between persons affected and those who are ‘materially’ affected by a proposal, the latter constituting a deliberate narrowing of the right to participate. In the absence of such an express narrowing, the Court should be slow to construe s 57(1) in a way that restricts the ability of members of the public who may not be ‘materially affected’ but nonetheless claim to be ‘affected’ by a development proposal to participate in the planning process.

It remains the case, however, that the person must at least be capable of being ‘affected’ by the grant of the permit in order to make an objection. The legislature has, by the inclusion of the words ‘who may be affected by the grant of a permit’, made it clear that there is an eligibility threshold for the making of objections, albeit a low one.

Furthermore, s 57(1) may be contrasted with other parts of the PE Act which allow ‘any person’ to take certain steps under the PE Act, notably in relation to enforcement.[29] The fact that s 57(2) requires an objection to state how the objector would be affected by the grant of the permit is also an important contextual consideration pointing against any ‘affect’, however remote or ridiculous, being sufficient to overcome the requirement in sub-s (1) that the person be ‘affected’ by the grant of a planning permit.
[29]See sections 21, 114, 125, 149B and 198 of the PE Act.

Having regard to the need for the plaintiff to be ‘affected’ in some way by the grant of a permit, the plaintiff’s submission that an objection under Part 4 of the PE Act is an objection ‘in fact’ and need not be an objection ‘in law’ must be rejected. Nonetheless, it is tolerably clear from a number of provisions in Part 4 of the PE Act that the responsible authority is not expected to ‘vet’ objections to ensure that the threshold is met. This suggests that the threshold is a low one.

Section 57(2A) expressly provides for a responsible authority to reject an objection, but only where it considers the objection to have been made primarily to secure or maintain a direct or indirect commercial advantage for the objector. This must be read in the context of s 60 which provides that, before deciding on an application, the responsible authority must consider –

(c)all objections and other submissions which it has received and which have not been withdrawn;[30]

[30]Note, however, that s 60(3) of the PE Act provides that despite this requirement, if no notice is required to be given of an application, the responsible authority is not required to consider any objection or submission received in respect of the application before deciding the application.

The PE Act therefore contemplates objections being rejected and withdrawn, with rejection on specified grounds only. Otherwise, the objection must be considered by the responsible authority.

The Minister submits that these provisions only apply to ‘valid’ objections and that they are not to be read as limiting the ability of the responsible authority to refuse to accept an ‘invalid’ objection, that is, where the putative objector is not a person who is capable of being affected by the grant of the permit in any relevant sense. The Minister gave as an example a Scotsman who claimed to be a person affected by the grant of the permit for the Yering development on the ground that it would enable more golf to be played outside of Scotland, the home of golf. In such a circumstance, the responsible authority would not be required to treat the Scotsman as an objector. It could either not accept or reject the purported objection. If the matter proceeded to the tribunal and the Scotsman was the only objector, there would be a question as to whether the tribunal had jurisdiction to entertain the application for a review; if the Scotsman was not a valid objector, the tribunal would not be seized of jurisdiction. According to the Minister, none of this would be manifestly inconvenient or unfortunate. In the isolated cases where an issue of this kind arose, it could be dealt with swiftly and efficiently without any harm being done to the process. While it may not be easy for the responsible authority to determine whether a person may be affected by the grant of a permit because it will have little or no information to go on, it must nonetheless do its best.

In my view, to place an onus on councils to ascertain at various stages of the permit process whether an objector is a valid objector creates significant difficulties, suggesting that the scrutiny of objectors (as opposed to the consideration of objections) was not in the contemplation of the legislature when it enacted Part 4 of the PE Act.

Although I accept the submission that s 57(2A) and s 60(1)(c) implicitly refer to ‘valid’ objections and that objections may purportedly be made by persons who do not satisfy the eligibility threshold in s 57(1), I am not persuaded that the responsible authority can, let alone must, ‘do its best’ to ascertain that the objector is a person who ‘may [truly] be affected’ by the grant of a permit. It is possible to envisage a responsible authority receiving thoughtful and meritorious objections on heritage grounds from persons with a strong personal commitment to the protection of heritage in Victoria who do not live in or own property anywhere near the development site. In my view, where the proposal is a significant proposal with the potential to affect a broad community (such as, for example, a proposal to demolish or modify an important public building) the PE Act contemplates the receipt of such objections. However, it would be impossible for the council to investigate the legitimacy of the objectors’ interest in and concern about the impacts of the proposal.

Moreover, there are a number of provisions in the PE Act relating to the treatment of objections or objectors that assume that the objector has made a ‘valid’ objection. Pursuant to s 63, if the responsible authority decides to grant a permit and there are no objectors, the responsible authority must issue the permit. However, s 64 provides that if there are objectors, the responsible authority must give the applicant and each objector a notice of its decision and must wait before issuing a permit.[31] In this case, if the plaintiff was not a valid objector, the Council should have issued a permit under s 63, rather than give a notice of decision under s 64. Had there been more than one objector, the requirement under s 64(1) would have been met by giving notices to the valid objector or objectors, but not to the invalid objectors, including the plaintiff.
[31]The responsible authority must not issue the permit to the applicant until the end of the period within which an objector may apply to the tribunal for a review of the decision to grant the permit, or, if an application for review is made within that period, until the application is determined by the tribunal or withdrawn.

Similarly, ss 83 and 83A give objectors the right to be notified of any application by the permit applicant for a review of the responsible authority’s decision and to become a party to the proceeding for review in specified circumstances. These provisions also assume that an objector is a ‘valid’ objector, because in the absence of such an assumption, the permit applicant would be put in the invidious position of having to decide whether the objector was a valid objector or not.

Sections 63, 64, 83 and 83A show, in my view, that the threshold for a ‘valid’ objection must be a low one, because it is not anticipated that there will be any inquiry into the legitimacy of objectors or the validity of objections either at this stage or subsequently.

I have concluded, therefore, that while there is a statutory threshold for the making of an objection under s 57(1) of the PE Act which must be acknowledged, it is a threshold that is far easier to satisfy than the standing requirement described in the ACF Case.

Indeed, the PE Act provides for members of a ‘community’ who are merely interested in or concerned by a proposal to participate in the planning process in appropriate circumstances. This means that persons who might otherwise be described as having a ‘mere intellectual or emotional concern’ may participate the permit process and object to a permit being granted.

It will be said that this removes any standing requirement in that it breaks down the distinction between a ‘valid’ objector and any other member of the public. If only an intellectual or emotional concern is required, then any person can object to the grant of a permit for any proposal.

I do not think that the net has been cast so widely. The proposal must be of a kind that is capable of generating interest or concern in the relevant community. The intellectual or emotional concern must be genuine and demonstrable and it must be based on a proper planning considerations.

As a practical matter, the question of ‘invalid’ objections becomes acute at the level of review by the tribunal. As Senior Counsel for the plaintiff pointed out in submissions, there are a variety of mechanisms under the VCAT Act and the PE Act to deal with unmeritorious applications and querulous parties to tribunal proceedings.

Was the plaintiff capable of being affected by the grant of a permit for the Yering development?

The plaintiff must establish that, when he objected to the revised proposal for the Yering development in December 2011, he was capable of being affected by the grant of a permit for that proposal.

The plaintiff points to his special interest in the environment of the Yarra Valley and the water quality of the Yarra River (as evidenced by the first tribunal proceeding), his membership of other golf clubs in the Yarra Valley and the fact that he controlled assets attached to one of these golf clubs, the Heritage Golf Club. In the course of argument, the plaintiff also sought to rely on his interest as a beneficiary of the superannuation fund of which his late wife was a member, which owns a ‘lot’ in a hotel attached to the Heritage Golf Club.

The Minister strongly disputes that the plaintiff is a person who may be affected by the grant of a permit for the Yering development in any relevant sense. He submits that: (a) reliance on having brought the first tribunal proceeding involves a ‘bootstraps’ argument and that the plaintiff was not a valid objector in respect of that proposal either; (b) the plaintiff does not say he has used the Yering site at any time, but only that he has visited the broader Yarra Valley region; and (c) the commercial interests relied upon are not in fact interests of the plaintiff but those of the companies or entities in question or of other family members.

Recreational use of the Yarra Valley and environmental activism

To qualify as a person ‘who may be affected’ by the grant of a permit for the Yering development, the plaintiff relies on his membership of the RACV Club in Healesville, his social membership of Yering Meadows Golf Club and corporate membership of the Heritage Golf Club, and the fact that he and his wife visited the Yarra Valley region often for recreational purposes. He was, he says, a regular user of the Yarra Valley.

The plaintiff also submits that his special interest in the Yering development and its effects on the environment of the Yarra Valley is evidenced by his significant investment of time and money prosecuting the first tribunal proceeding. This involved engaging experts to give evidence on such matters as floodplain management, the effect of the proposed development on water quality in the Yarra River and Sugarloaf Reservoir, the impacts and potential impacts of the proposed development on Yarra River species and locally and nationally significant flora and fauna, the effects of pesticides, herbicides, fungicides and fertilisers usually used on golf courses, and the loss of agricultural land at the site. He says that he was substantially successful in that proceeding.

As to his credentials as a person concerned to protect the environment of the Yarra Valley more generally, the plaintiff says that he has been active in seeking to ensure that a waste water treatment plant operating at the Heritage Golf Club did not operate so as to discharge treated effluent into the Yarra River or otherwise damage the waterway and floodplain of the Upper Yarra Valley. More generally, he is a supporter of HEWI and, so he says, a strong believer in their efforts to protect the environment in the Yarra Ranges.

In my view, in December 2011, when he objected to the grant of the permit for the Yering development, the plaintiff was capable of being relevantly ‘affected’ by the grant of the permit. As a member of other golf clubs and a user of outdoor recreation facilities in the Yarra Valley, the plaintiff would be affected by the Yering development if its golf course and associated facilities were not developed in accordance with best practice, and with a view to minimising the possibility of harm to the surrounding environment, including the water quality in the Yarra River.

The Minister complains that there was no evidence before the Court as to the currency of the golf club memberships at the relevant time or that the plaintiff actually played golf or used the facilities at the golf clubs.

The plaintiff gave evidence that he held the relevant memberships. I do not consider that the absence of evidence that he actually played golf or used any particular facilities means that he cannot rely on the memberships to assert that he may be affected, as a member of the clubs, by any adverse environmental effects of the Yering development that presented dangers to the relatively pristine environment of the broader region.

I also accept that the plaintiff has an intellectual and emotional concern for the environment of the Yarra Valley. The plaintiff displayed concern about the protection of the environment of the Yarra Valley prior to December 2011. In my view, the effort made by him in the first tribunal proceeding should not be disregarded. I accept that the plaintiff was substantially successful in the first tribunal proceeding: the tribunal indicated that, had it granted a permit, it would have imposed more stringent conditions on the Yering development than the Council was proposing to impose, particularly in relation to the management of the use of biocides. It is to be inferred that the evidence given by one or more of the experts commissioned by or on behalf of the plaintiff and HEWI resulted in the tribunal scrutinising the proposed conditions and concluding that they were not adequate to protect the environment. Whether the plaintiff was a ‘valid’ or ‘invalid’ objector at that time is of no moment; by any measure, the plaintiff displayed a high level of commitment to securing an independent assessment of the environmental effects of the Yering development when he and HEWI brought the first tribunal proceeding.

In this context, it is necessary to have regard to the character and scale of the Yering development, and the sensitivity of the environment in which it is proposed to be carried out. Golf courses and turf farms are not benign developments. Golf courses often involve extensive modification of the landscape, the removal of native vegetation and the ongoing use of herbicides, pesticides and fertilizers to grow and maintain the artificial environment of fairways and greens. Turf farms also demand the elimination of native plant species and heavy fertilisation. The Yarra Valley is defined by the important water course after which it is named. It is a region that is recognised in the PE Act as warranting special provision to regulate development. In this case, the land in question fronts the Yarra River, and run off into the river has the potential to have wider environmental effects.

In the first tribunal proceeding, the tribunal found that the golf course and associated turf farm would use a significant volume and range of biocides with the potential to affect water quality in the Yarra River should there be contaminated runoff. The tribunal observed that it was apparent that additional pesticides/biocides were required for the golf course’s operation and that there were problems with one of the conditions imposed by the Council with respect to failure to nominate application frequencies.[32] During the hearing, the permit applicant agreed to a particular assessment regime for biocides, which involved accepting the evidence of the expert called by the plaintiff.[33] The tribunal said that had it determined to grant a permit, the ‘valid concerns’ about biocides and pesticides could have been addressed in a manner that it found acceptable and that the matter could have been dealt with by a permit condition requiring the risks of all proposed chemical products to be used on the site to be reviewed through a quantitative human health and ecological risk assessment and detailed conditions with respect to monitoring.[34] It concluded that unacceptable risks or outcomes from the use of pesticides could be avoided if a proper monitoring regime were developed and operated.[35]
[32]Healesville Environment Watch Inc & Ors v Yarra Ranges SC & Ors [2010] VCAT 2047, [91].
[33]Ibid [92].
[34]Ibid [94].
[35]Ibid [95].

The tribunal made similar observations and findings in relation to nutrient runoff.[36]
[36]Ibid [98].

It is apparent that the tribunal accepted that pesticide/biocide and nutrient runoff was a significant issue, and that controls and monitoring to prevent unacceptable outcomes had to be carefully formulated.

Having regard to the character and scale of the Yering development, the sensitivity of the Yarra Valley environment and the potential for the Yering development to have adverse environmental effects, particularly on water quality, the plaintiff’s use of the Yarra Valley for recreational purposes (including his membership of the golf clubs) and his professed concern and commitment to protecting the environment in the Yarra Valley, the plaintiff satisfied the threshold in s 57(1) of the PE Act as a person ‘who may be affected’ by the grant of a permit for the Yering development.

Commercial interests

The plaintiff claimed that his positions as a director of and shareholder in companies having commercial interests in the Yarra Valley qualified him a person who ‘may be affected’ by the grant of a permit for the Yering development.

The Minister correctly submits that neither the directorships nor the shareholdings establish a sufficient link between the plaintiff and the subject matter of the proceeding, and that it is inappropriate to pierce the corporate veil. Late in the hearing of the application, however, the plaintiff identified what he claimed was a direct beneficial interest the hotel development attached to the Heritage Golf Club. The interest was referred to as ‘Lot 131’, which apparently represents a room in the hotel with attached rights, including the right to use the golf course.

The legal owner of Lot 131 is the trustee of a superannuation fund of which the plaintiff’s wife and three children were members (known as the ‘Willona Superannuation Fund’ and hereinafter referred to as the ‘Fund’). The plaintiff gave evidence that assets held on behalf of the children were segregated and that his wife, now deceased, was the beneficial owner of a substantial majority of the assets of the Fund, to which he has been entitled since late 2010 as a result of a binding death benefit nomination.

The bookkeeping for the Fund’s arrangements was unsatisfactory: there was no members’ register and interests of members were reflected only in a general ledger that was not up to date. The Fund had not filed tax returns for some time.

Lot 131 was acquired by the trustee of the Fund, Australian and Pacific Investment Corporation Pty Ltd (‘APIC’) on 19 January 2011 for $140,000. There was no company resolution to purchase Lot 131, and nor was there any valuation of Lot 131 before its acquisition.

The Minister submits that the plaintiff has no relevant interest in Lot 131 and that, even if he did, it would not give him a special interest in the validity of Amendment C130. He made four (cascading) submissions in this respect:

(a)Lot 131 is not the property of the Fund because the trustee, APIC, did not buy Lot 131 in its capacity as a trustee of the Fund;
(b)Even if Lot 131 was purchased by APIC in its capacity as trustee, the plaintiff was not a beneficiary of the fund;
(c)Even if the plaintiff has an equitable interest in Lot 131, Lot 131 was acquired by APIC in breach of trust and the plaintiff cannot rely upon his interest in Lot 131 in this proceeding;
(d)Even if the plaintiff can rely on an interest in Lot 131, that interest is too remote in all the circumstances to make him a person who may be affected by the grant of a planning permit for the Yering development. The plaintiff’s real interest, if he has one, is in the income stream from the hotel, which on his evidence was in the vicinity of $8,000 per year. The impact on that income stream of the Yering development is so remote as to be inconsequential, given the distance between the proposed Yering development and the hotel interest purportedly held by the plaintiff.

As to the first point, the Minister refers to the requirement in cl 9.8(c) of the trust deed[37] for the Fund (the ‘Deed’) that the trustee of the Fund to be a Constitutional Corporation ‘where each Member is a director of the Constitutional Corporation and each director is a Member’. When Lot 131 was purchased in January 2011, the plaintiff claimed to be a member of the Fund but was not a director of APIC. Accordingly, so the Minister says, the Fund was without a trustee at the time Lot 131 was acquired because APIC was not a trustee within the meaning of the Deed. Moreover, in the absence of annual reports, tax returns and other documents (which were requested but not provided), there was no evidence before the Court to establish that Lot 131 was purchased with trust money. On that basis, so the Minister contends, the Court should infer that Lot 131 was not an asset held by APIC in its capacity as trustee for the Fund and it should conclude that APIC purchased Lot 131 in its own right.
[37]Deed of Variation dated 30 April 2005 made by Australian Pacific and Investment Corporation Pty Ltd as the trustee.

As to the plaintiff’s claimed membership of the Fund, the Deed defines a ‘Member’ as an eligible person who has been accepted as a member of the Fund under cl 26. Clause 26.2 requires an application for membership; cl 26.3 requires an admission to membership by the trustee. The Minister submits that there is no evidence before the Court that the plaintiff applied to be a member of the Fund in accordance with cl 26.2 or that APIC accepted the plaintiff as a member in accordance with cl 26.3.

In the light of these submissions, Senior Counsel for the plaintiff explained that the plaintiff did not purport to be a member of the Fund, but a ‘Beneficiary’, that is, a person presently and absolutely entitled or having a contingent right to receive a benefit (as defined) under the provisions of the Deed at any given time.[38] This meant that the argument about APIC not being the trustee of the Fund fell away, as did the argument as to whether the plaintiff was or was not a member of the Fund.
[38]See cl 2 of the Deed.

However, if the plaintiff is a ‘Beneficiary’ of the Fund rather than a member, the question remains as to the nature of the plaintiff’s interest, if any, in Lot 131 and whether it is capable of making him a person ‘who may be affected’ by the grant of a permit for the Yering development for the purposes of s 57(1) of the PE Act.

The plaintiff was a person nominated by his late wife for the payment of benefits from the Fund in accordance with a binding death benefit nomination. The binding death benefit nomination in question was made by Jane Marie Boerkamp on 17 March 2010 directing the trustee to pay on her death 100% of her death benefits to the plaintiff. Clauses 37.6 and 38.6 of the Deed provide that the trustee shall pay a death benefit in accordance with cl 41 equal to the amount standing to the credit of the member’s accumulation account as of the date on which payment is made. Clause 37 deals with amounts held by the Fund as a lump sum benefit; cl 38 with amounts held by the Fund as a pension benefit.

The Minister submits that the death benefit nomination does not give the plaintiff a beneficial interest in any of the assets of the Fund. He relies upon the decision of the Supreme Court of New South Wales in CSR Ltd v Chief Commissioner of State Revenue,[39] in which Gzell J held that until the happening of a prescribed event that crystallises a member’s right into an actual entitlement, a member of a superannuation fund is neither the legal nor the beneficial owner of any amount that stands to the credit of the member’s account from time to time.[40] The Minister submits that the entitlement to benefits under the binding death benefit nomination simply entitles the plaintiff to an income stream pursuant to cl 37.6 or cl 38.6 of the Deed and that he has no interest in the assets held by the Fund.
[39](2006) 68 NSWLR 440.
[40]Ibid, [12].

The plaintiff, however, points to cl 32.3 of the Deed, which provides that the trustee may, with the consent of the Beneficiary to whom a benefit is payable, transfer investments of the Fund of an equivalent value to the Beneficiary in lieu of paying the whole or any part of the amount otherwise payable pursuant to the provisions of the Deed. The plaintiff submits that the Deed therefore contemplates that Lot 131 may be transferred to him at any time with his consent. Indeed, he argues that he can call for Lot 131 to be transferred to him, as he is the only beneficiary of that asset.

As a result, the plaintiff submits that when he lodged his objection to the grant of a permit in December 2011, he had an entitlement to the assets in the Fund, including Lot 131, in the sense referred to by Gzell J in CSR Ltd v Chief Commissioner of State Revenue.[41] However, he submits more generally that it does not matter whether he has a beneficial interest in whole of the fund standing in Mrs Boerkamp’s name or whether his interest extends to individual assets standing in her account. As a ‘Beneficiary’ of the Fund, he is capable of being ‘affected’ by the grant of the planning permit for the Yering development in that he has an interest to protect in an asset located in the Yarra Valley that may be adversely affected by that development.
[41]Ibid.

I accept this submission insofar as it relates to the plaintiff having an interest to protect in an asset located in the Yarra Valley. Moreover, having regard to the potential impacts of the Yering development identified by the tribunal in the first tribunal proceeding, I accept for the purposes of the threshold in s 57(1) of the PE Act, that the plaintiff, as a Beneficiary under the Deed, was a person capable of being adversely affected by the Yering development.

Conclusion

The threshold for making a valid objection under s 57(1) is a low one. The plaintiff has cleared that hurdle. He was a valid objector to the Yering development when he made an objection to the revised proposal in December 2011 and was entitled to bring the second tribunal proceeding under s 82(1) of the PE Act.

Was the tribunal proceeding an abuse of process?

Notwithstanding the finding that the plaintiff was a ‘valid’ objector and therefore entitled to bring the second tribunal proceeding under s 82(1) of the PE Act, it is necessary to consider the Minister’s submission that the second tribunal proceeding was an abuse of process because it was brought for a collateral purpose.

The Minister submits that the plaintiff’s true reason for bringing both the first and second tribunal proceedings was to increase his prospects of acquiring the Doncaster site by putting pressure on the Club by delaying its move to Yering and, consequently, the settlement of the sale of the Doncaster site.

There was some evidence to support this submission.

The plaintiff is an unusual man. He is apparently a successful property developer and an environmentalist. However, his motives are not always transparent and his correspondence with the Club regarding his offer to develop the Doncaster site shows him to have toyed with the board of the Club, being in turn conciliatory and confrontational. On the one hand, the plaintiff told the Club in October 2009 that he ‘would like the Club to relocate to Yering as soon as possible’ so that he could ‘get on with it’ and redevelop the Doncaster site as quickly as possible; however, three months later, when objecting to the first permit application, the plaintiff submitted that the application might ‘financially decimate the existing golfing industry in the whole Yarra Valley’ and that the area was already ‘over catered with golfing facilities’. In January 2010, the plaintiff explained to the Club that he had lodged a general objection to the Yering development to keep him informed about the planning process and its ultimate outcome because he would need that information for his compensation claim against the Club for representations made to him during the sale process for the Doncaster site. On 4 April 2010, the plaintiff offered to withdraw his objection on the basis that there would be an acquisition of the Doncaster site pursuant to the development agreement he had previously proposed. The Club did not respond for a month, but then stated that it did not intend to pursue the plaintiff’s proposal any further. The plaintiff replied on the same day:

I assumed that this was the case…. Anyhow, it is now all too late as at this stage I am unable to help the club in relocation to Yering as I have just thrown the Auspac Group’s full resources behind those objecting to your permit. Nothing personal but I need to ensure that what the club is proposing does not damage the valley and my personal interest in its future.

Having commenced the first tribunal proceeding, the plaintiff nonetheless wrote to the Club in September 2010 saying that he was prepared to put his offer back on the table after ‘the VCAT decision’. On 22 December 2010, some five days after the tribunal had set aside the first Council decision, the plaintiff again wrote to the Club inviting it to consider his offer for the Doncaster site.

The approach revealed in these communications is, to put it neutrally, unpredictable.

Moreover, the plaintiff’s dealings over the ownership of units in entities associated with the Heritage Golf Club, well exposed in cross-examination by the Minister’s counsel, remain opaque and suggestive of motives other than those put forward by the plaintiff himself. There was evidence that the purchase of Lot 131 by APIC formed part of a strategy involving the acquisition of the management rights for the hotel. The plaintiff, or an entity controlled by him, made an unsuccessful offer of $17.55 million for the golf club assets, which were ultimately acquired by a company known as Golden Heritage Golf (‘GHG’). At some point in time, the completion of the sale of the golf club assets to GHG was contingent upon GHG also acquiring the management rights for the hotel. It was put to the plaintiff that the acquisition of Lot 131 and, on the back of that, the management rights for the hotel, formed part of a strategy to frustrate the purchase of the golf club assets by GHG. This might have opened the door for the Club to re-locate to the Heritage Golf Club, rather than proceed with the Yering development, which might, in turn, have put the plaintiff in the box seat to develop the Doncaster site.

The plaintiff’s dealings with the Club over the sale of the Doncaster site and the machinations around the purchase of assets at the Heritage Golf Club are troubling. However, the evidence before the Court is insufficient to persuade me that the second tribunal proceeding was brought for a collateral and improper purpose. I am satisfied that the plaintiff brought the second tribunal proceeding in order to have the merits of the Yering development reviewed by an expert tribunal, given what he perceived to be its potential effects on the environment and water quality in the Yarra River. This is supported by the commissioning of extensive expert evidence for the first tribunal proceeding and the steps taken in anticipation of the hearing in the second tribunal proceeding. Had the plaintiff wanted to disrupt the sale process for the Doncaster site by initiating proceedings to delay the Club’s move to Yering, this could have been achieved without the expense and trouble of commissioning a plethora of expert reports. Moreover, so far as the plaintiff was concerned, by the time the second tribunal proceeding was commenced in October 2012, the fate of the Doncaster site had been resolved. The plaintiff’s evidence was that his offer for the Doncaster site was refused in January 2011 and ‘that was the end of it’ as far as he was concerned. The effluxion of time between the last of the plaintiff’s offers and the commencement of the second tribunal proceeding tells against the second tribunal proceeding being merely a vehicle for the plaintiff to press his claim to develop the Doncaster site.

The plaintiff gave evidence, that his aim in bringing the second tribunal proceeding was to obtain an independent review of the decision to permit the Yering development, and particularly of the conditions attached to the permit. This is consistent with his professed environmental concerns about the development and the way in which he and HEWI conducted the first tribunal proceeding.

I accept the plaintiff’s evidence that the second tribunal proceeding represented a genuine attempt by him to have the Yering development fully reviewed by an independent expert body. On the evidence before the Court, the second tribunal proceeding was not an abuse of process.

Is the plaintiff’s interest connected to the relief sought in the proceeding?

The Minister submits that, even if the plaintiff had standing to commence the second tribunal proceeding, it does not follow that he has standing to bring this proceeding because he is required to establish both a sufficient connection between his interests and the decisions under challenge and a sufficient connection between his interests and the relief sought in the proceeding. The Minister contends that there is no sufficient connection between the plaintiff’s interest in having the second tribunal proceeding heard and determined and the relief now sought, because that relief will not reinstate or revive the second tribunal proceeding. The second tribunal proceeding has been resolved with the plaintiff obtaining the precise relief that he was seeking, namely, the setting aside of the Council’s decision to grant a planning permit for the Yering development.

The Minister submits generally that the plaintiff’s participation in an administrative process (a tribunal proceeding) will not create standing where there is otherwise none and that participation in the review of the decisions made by the Council to grant a planning permit does not confer a right to challenge a decision made by a different person (the Minister) under an entirely separate process.[42]
[42]The Minister also relies on authorities that stand for the proposition that the incurring of expenses and the expenditure of time and energy does not create standing in and of itself. In any event, he says that it appears that the money was spent by corporate entities and not by the plaintiff himself.

I do not accept that there is no sufficient connection between the plaintiff’s interest in having the second tribunal proceeding heard and determined and the relief sought in this proceeding. The s 20(4) decision and the Amendment decision removed the need for the Club to obtain a permit for the Yering development and the possibility of any independent review of the conditions to which the Yering development is subject. Amendment C130 permits the Yering development, subject to the same conditions that the Council sought to attach to the permit. Those conditions were the subject-matter of the second tribunal proceeding.

If the Minister’s decision to intervene is set aside and Amendment C130 is declared to be invalid, the Club will again require a permit under the Planning Scheme for the Yering development. Any future decision by the Council to grant a permit for the Yering development will be amenable to review by the tribunal at the instigation of an objector. The tribunal will be required to review the decision having regard to the merits of the proposal and to make the ‘correct and preferable’ decision. Such a review is what the plaintiff sought to secure by bringing the proceeding that was made redundant by the Minister’s decisions.

Plainly, the second tribunal proceeding cannot be reinstated. However, having been deprived by the Minister’s decision to intervene of the opportunity to have the conditions attached to the Yering development reviewed by an expert body, the plaintiff now has a genuine interest in having the Minister’s decision to intervene set aside. As a party to the now redundant second tribunal proceeding, his interest is greater than the interest of an ordinary member of the public.

In my view, therefore, there is a sufficient connection between the plaintiff’s interest as a party to the second tribunal proceeding, which was to have the tribunal review the conditions attached to the permit for the Yering development, and the relief sought in this proceeding, which would (barring further ministerial intervention) re-enliven the requirement to obtain a permit for the Yering development and expose any permit decision to review by the tribunal.

It must be acknowledged, however, that even if the Minister’s decisions are set aside and Amendment C130 is declared invalid, the Minister may make a further decision to intervene according to law. The Minister could intervene to make the permit decision in lieu of the responsible authority or the tribunal and/or could again amend the Yarra Ranges Planning Scheme to facilitate or permit the Yering development. As a result, the plaintiff may never have an opportunity to have the proposal reviewed by the tribunal.

This highlights the fact that there is no neat correlation between the plaintiff’s interest as a party to the second tribunal proceeding in having the permit conditions reviewed on their merits and the relief sought in this proceeding, which is directed to ensuring that the Minister’s powers of intervention were exercised lawfully. However, while the relief that the plaintiff seeks will not reinstate the second tribunal proceeding and will not necessarily create the circumstances for a future merits review of the conditions for the Yering development, if the plaintiff is correct in what he asserts are the flaws in the s 20(4) decision, any future Planning Scheme amendment will be subjected to the processes of public notice and scrutiny contemplated by Part 3 of the PE Act. Moreover, if the plaintiff were to succeed in this proceeding on the basis that the Minister failed to consider the environmental effects of the Amendment decision, or because the Amendment decision contravened specific requirements in the PE Act for the protection of the Yarra Valley and/or Green Wedge Zones, those effects would have to be considered and/or the requirements would have to be met. This would provide a measure of the oversight or supervision of the Yering development that the plaintiff sought to obtain in the second tribunal proceeding.

In Batemans Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd,[43] Gaudron, Gummow and Kirby JJ[44] observed that the standing rule was flexible and that ‘the nature and subject matter of the litigation will dictate what amounts to special interest’. Their Honours emphasised the importance of applying the criteria for standing by reference to ‘the exigencies of modern life’ as occasion required; they said further that there was a danger involved in the adoption of any precise formula as to what suffices for a special interest in the subject matter of the action where the consequences of doing so might be to unduly constrict the availability of equitable remedies to support the public interest in due administration which enlivened equitable intervention in public law.[45] Justices Gaudron, Gummow and Kirby explained why equity might intervene and did so in terms of the vindication of the public interest, stating:

The answer given for a long period has been the public interest in the observance by such statutory authorities, particularly those with recourse to public revenues, of the limitations upon their activities which the legislature has imposed. Where there is a need for urgent interlocutory relief, or where the fiat has been refused, as in this litigation, or its grant is an unlikely prospect, the question then is whether the opportunity for vindication of the public interest in equity is to be denied for want of a competent plaintiff. The answer, required by the persistence in modified form of the Boyce principle, is that the public interest may be vindicated at the suit of a party with a sufficient material interest in the subject matter. Reasons of history and the exigencies of present times indicate that this criterion is to be construed as an enabling, not a restrictive, procedural stipulation.[46]

[43](1998) 194 CLR 247 (‘Bateman’s Bay’).

[44]Referring to the earlier decision of the High Court in Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (SA) (1995) 183 CLR 552, 558.

[45]Batemans Bay, 265-66.

[46]Ibid 267, [50]. In Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd, (2000) 2000 CLR 591, [97] Gummow J also described the historical basis of the engagement of equity in matters of public law, stating that such proceedings entailed ‘the use of the auxiliary jurisdiction in equity’ to fill what otherwise were inadequate powers to secure the compliance by others with particular statutory regimes or obligations of a public nature.

The grounds that plaintiff wishes to raise concerning the consideration given by the Minister to the environmental effects of the Yering proposal and the Minister’s compliance with the requirements of Part 3A and Part 3AA of the PE Act are potentially important ones. The Minister ought to be held to strict compliance with the protective provisions of the PE Act, particularly where he has removed the possibility of independent review of the proposal by an expert tribunal.

There is, in my view, a significant overlap between the plaintiff’s interest in having the second tribunal proceeding heard and determined and the relief sought in this proceeding. The requirement that the plaintiff’s interest is the proceeding be related to the relief claimed in the statement of claim is satisfied.

Conclusion on ‘special interest’ (a): the second tribunal proceeding

Having regard to the nature and subject matter of the litigation, the plaintiff’s interest as a party to the second tribunal proceeding is sufficient to constitute a special interest in the subject matter of the action. Having brought the second tribunal proceeding and seen it rendered futile by the s 20(4) decision and the Amendment decision, the plaintiff has an interest greater than that of ordinary members of the community in the lawfulness of the Minister’s decisions.

This resolves the question of standing in the proceeding. However, for the sake of completeness I will consider briefly the two further bases upon which the plaintiff claims to have a special interest in the lawfulness of the Minister’s decision to intervene and the validity of Amendment C130.

Special interest (b): environmental interests

The plaintiff’s concern about the environment of the Yarra Valley, combined with his recreational use and his commercial interests in the Yarra Valley, were sufficient to make him a person ‘who may be affected’ by the grant of a permit for the Yering development for the purpose of s 57(1) of the PE Act. However, whether his interest in the environment of the Yarra Valley or his commercial interests are sufficient to give him standing to bring this proceeding is a different matter. In each case, he must show that the interest is a ‘special interest’ that sets him apart from other members of the public.

The plaintiff’s interest in the environment arising from his opposition to the Yering development is, in my view, ‘a mere intellectual or emotional concern’.

However, environmental groups having no material interest in the subject matter of an action and only an intellectual or emotional concern have, on occasion, been held to have a ‘special interest’ in litigation involving areas in which they are active. In North Coast Environment Council Inc v Minister for Resources,[47] a case involving a challenge to a woodchip licence, Sackville J set out a number of principles concerning the standing of environment protection organisations to challenge administrative decisions affecting the environment. His Honour said, relevantly, that such a plaintiff may be able to demonstrate a special interest in the preservation of a particular environment and that if it does so, an intellectual or emotional concern is no disqualification from standing to sue.[48] In this context, Sackville J identified a number of factors demonstrating the plaintiff organisation’s concern with the subject matter of the decision and its ‘closeness’ to that subject matter: the fact that it was a ‘peak’ environmental organisation; its recognition by the Commonwealth in the form of regular financial grants; its recognition by the New South Wales government in the form of appointment to advisory bodies to represent environmental concerns; its co-ordination of projects and conferences on matters of environmental concern; and its submission making on forestry management issues.[49]
[47](1994) 55 FCR 492.
[48]Ibid [82]. See also Environment East Gippsland Inc v VicForests [2010] VSC 335, [78]. Sackville J reiterated that an allegation of non-compliance with a statutory requirement or an administrative procedure is not enough of itself to confer standing and that the fact that a person may have commented on environmental aspects of a proposal as part of an environmental assessment process does not of itself confer standing to complain of a decision based on that process.
[49]Ibid [84].

The plaintiff has none of these features or qualifications.

The plaintiff’s interest in the environment of the Yarra Valley as an activist is not of long-standing. On the evidence, it took recognisable shape around the first tribunal proceeding, and it derives almost exclusively from his opposition to the Yering development. The only other event to which he points is his correspondence with the regulator about the waste water treatment at the Heritage Golf Club. He has no track record of environmental activism in the Yarra Valley more generally and certainly nothing to give him the status of the organisation that was the plaintiff in North Coast Environment Council Inc v Minister for Resources.[50]
[50](1994) 55 FCR 492.

In my view, therefore, there is nothing to lift the plaintiff above the position of an ordinary member of the public who is concerned about the effects of a development proposal on the environment in the Yarra Valley. His claim to have standing to bring the proceeding in this Court would fail if made on the basis of his environmental concerns alone.

Special interest (c): commercial interests

The plaintiff’s interest in Lot 131 is a material interest that gives him more than a ‘mere intellectual or emotional concern’ about the lawfulness of the Minister’s intervention and the validity of Amendment C130. However, the Minister submits that this interest is too remote to give him standing to challenge a planning scheme amendment affecting land that is some distance away from his interest. The Minister says that in the first tribunal proceeding the tribunal considered the impacts on water quality in the Yarra River of the Yering development and had made no findings in relation to whether there would be any environmental consequences some 2.5 kilometres downstream. The Minister submits that in those circumstances, it is not open for the Court to infer that there would be an effect on the Heritage Golf Club which could somehow diminish the value of the hotel development and Lot 131.

I reject this submission.

In the first tribunal proceeding, the tribunal identified significant risks of and from runoff from the golf course and turf farm that had to be well managed if the Yering development was to be approved. Although there was no specific finding in relation to the dangers of runoff to the environment 2.5 kilometres downstream, it would be reasonable for landowners downstream to be concerned about the effects of runoff, both as affecting their enjoyment of land and waterways downstream and as affecting the viability of businesses downstream that depend on a clean environment.

In the ACF Case, Mason J said that depending on the nature of the relief which he seeks, a plaintiff will in general have locus standi when he can show actual or apprehended injury or damage to his property or proprietary rights or to his business or economic interests.[51] In this case, the plaintiff apprehends damage to his commercial interest in Lot 131 as a result of environmental damage caused upstream by inadequate controls over pesticide and nutrient run off from the Yering development.
[51]ACF Case, 547.

In my view, the plaintiff has a special interest in the subject matter of the proceeding by reason of his interest in Lot 131 and the apprehended damage to that interest by reason of environmental damage resulting from inadequate controls over pesticide and nutrient run off from the Yering development

As a final matter, however, the Minister submitted that the plaintiff could not rely on any interest in Lot 131 because it was acquired by APIC in breach of the sole purpose test in s 62 of the Superannuation Industry (Supervision) Act 1993 (Cth). The Minister submitted that Lot 131 was in fact purchased to confer a commercial benefit on the plaintiff, that is, to help him to make an entry into the fund management business and/or to prevent the sale of the management lot for the hotel to GHG as part of a convoluted strategy to acquire the Doncaster land. The Minister submits that a plaintiff cannot obtain standing to bring a legal proceeding if that standing is based upon an unlawful or immoral act.

The plaintiff gave evidence that one of the reasons for APIC’s purchase of Lot 131 was to enable him (or APIC) to enter into the funds management business. It may therefore be that the purchase of Lot 131 by APIC as trustee of the Fund did not satisfy the requirements of the Superannuation Industry (Supervision) Act 1993. However, any illegal or immoral act involved in the purchase of Lot 131 is not something that founds or supports the cause of action in this proceeding. The plaintiff’s case in this proceeding does not rest upon proof of the immoral or illegal act alleged. The purchase of Lot 131 is unrelated to the substance of the proceeding and the plaintiff is not precluded from bringing the proceeding by reason of the circumstances of the acquisition of Lot 131.

Conclusion

The plaintiff has standing to bring the proceeding, based principally on his position as applicant in the second tribunal proceedings. The Minister’s intervention deprived him of the opportunity to have the tribunal, as an independent expert body, review the conditions to which the Yering development was subject.

Furthermore, the plaintiff has standing to bring the proceeding based on his interest in Lot 131.

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[2014] VSC 167

14 April 2014