Club Fogolar Furlan Melbourne v Paramount Investments Group Pty Ltd
[2024] VSC 686
•8 November 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION AND PLANNING LIST
S ECI 2022 02105
| HEAD, TRANSPORT FOR VICTORIA | Applicant |
| v | |
| JOHN KILPATRICK | First Respondent |
| and | |
| WYNDHAM CITY COUNCIL | Second Respondent |
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JUDGE: | Cavanough J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 9, 13 June, 24 July 2023 |
DATE OF JUDGMENT: | 8 November 2024 |
CASE MAY ALL BE CITED AS: | Head, Transport for Victoria v Kilpatrick & Anor |
MEDIUM NEUTRAL CITATION: | [2024] VSC 686 |
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PLANNING AND ENVIRONMENT — Land reserved for transport corridor — Applications for permits to build dwellings on reserved land — Applications made with object of being refused — Aim of compensation for ‘planning blight’ — Transport authority initially requires that any permits have condition that dwellings be sited outside the reserved land — Permits issued accordingly — Landholder applies to Victorian Civil and Administrative Tribunal (‘VCAT’) for review of conditions — Landholder asks VCAT to disallow his application for review on the ground that the land is required for a public purpose — Transport authority reverses its position on the conditions — VCAT finds for landholder on the facts and the relevant planning considerations — VCAT finds that transport authority lacked ‘clean hands’ in adopting fluctuating positions — VCAT makes order as sought by landholder — Transport authority seeks leave to appeal on proposed questions of law and raises numerous interrelated proposed grounds of appeal — Transport authority seeking in effect to depart from the case it ran at VCAT — None of the proposed grounds of appeal established — Leave to appeal granted — Appeal dismissed.
Planning and Environment Act 1987 (Vic), ss 1, 3, 4, 6, 8, 8A, 8B, 9, 12, 13, 14, 14A, 47, 55, 56, 60, 61, 62, 77, 79, 80, 84A, 84B, 84AB, 85, 98, 99, 100, 102, 103, 104, 104A, 105, 106, 107, 108, 109, 110, 111 and 112.
Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 4, 51, 67, 75, 98, 116, 117, 124, 130, 148, and Sch 1.
Land Acquisition and Compensation Act 1986 (Vic), Parts 3, 10 and 11.
Transport Integration Act 2010 (Vic), ss 64A and 64B.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | S Goubran KC with E Murphy | Russell Kennedy |
| For the First Respondent | T Boston KC with P Chiappi | Hall & Wilcox |
| For the Second Respondent | No appearance | Not applicable |
HIS HONOUR:
Introduction and overview: a statutory authority challenges a decision of VCAT in a complex matter relating to land planning and compensation
A statutory authority of the Victorian Government challenges, under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘the VCAT Act’), a decision and order made by the Victorian Civil and Administrative Tribunal (‘VCAT’) on 11 May 2022 in its Planning and Environment List.[1] VCAT’s decision and order disposed of four related applications for review that had been brought by Mr John Kilpatrick, a landholder who is now the first respondent in this Court.
[1]Kilpatrick v Wyndham CC [2022] VCAT 474 (‘Kilpatrick v Wyndham’), reproduced in the Court Book (‘CB’), 101–120.
Previously, in 2020, Mr Kilpatrick had begun to take steps towards claiming financial compensation under the Planning and Environment Act 1987 (Vic) (‘the PEA’) for the existence of a planning reservation for a freeway and railway corridor over certain parts of his land. A predecessor of the statutory authority had brought about the inclusion of the reservation for the freeway and railway corridor in the applicable planning scheme. What Mr Kilpatrick had in mind was to make, in due course, a claim for compensation under the PEA for a species of what is sometimes called ‘planning blight’.[2] Mr Kilpatrick’s first step was to make ‘test’ or ‘token’ applications, under Part 4 of the PEA, to Wyndham City Council (‘the Council’) (now the second respondent in this Court) for planning permits to build four substantial residences within the relevant reserved parts of his land. Mr Kilpatrick was hoping, and expecting, that the Council, after a compulsory referral of the matter to the statutory authority, would refuse to grant the permits on the ground that the land ‘is or may be required for a public purpose’ within the meaning and for the purposes of the PEA. Such refusals would have ‘triggered’[3] an entitlement in Mr Kilpatrick to claim financial compensation under the PEA in due course; and the statutory authority would have been liable to pay any such compensation found to be due. Prior to 2020, Mr Kilpatrick had already made two successful claims for compensation against the statutory authority by following a corresponding path. Those claims had related to other parts of his land affected by the same freeway and railway reservation.
[2]See, e.g., Capela v Minister for Energy, Environment and Climate Change [2018] VSC 360, [19] (Emerton J); Barilla & Anor v Roads Corporation (2017) 54 VR 198, 203 [23] (Emerton J).
[3]The word ‘trigger’ and its derivatives are often used in this context to refer to the completing of a person’s entitlement to claim financial compensation under the Planning and Environment Act 1987 (Vic) (‘PEA’), and the word has been used by the parties to this case in that sense, notwithstanding that the parties acknowledge, correctly, that, in Mason v Head, Transport for Victoria [2021] 63 VR 175 (‘Mason’), the Court of Appeal held, disagreeing with some aspects of the prior decision of the Court of Appeal in Halwood Corporation Ltd v Roads Corporation [1998] 2 VR 439 (‘Halwood’), that the immediately relevant provisions of the PEA are substantive rather than procedural provisions, and that those provisions do not merely supply a ‘procedural trigger’ for an entitlement to compensation arising from other provisions of the PEA.
Under the PEA, there is an alternative path towards compensation for ‘planning blight’, being a path that requires the landowner to sell the relevant land. Mr Kilpatrick was farming his land, and did not wish to sell any part of it.
Mr Kilpatrick’s permit applications were referred by the Council to the statutory authority pursuant to the PEA. The statutory authority did not wholly object to the grant of the permits. Rather, it purported to direct the Council to impose, on any permits granted, conditions requiring, most relevantly, that the residences be constructed on parts of Mr Kilpatrick’s land outside the reservation for the transport corridor. Had matters rested there, Mr Kilpatrick’s ability to make his intended claim for compensation (without sale) under the relevant provisions of the PEA would not have been ‘triggered’.
Mr Kilpatrick then made applications to VCAT to review the conditions, pursuant to the PEA and the VCAT Act (operating together). Again, these were test or token applications. Mr Kilpatrick urged VCAT to ‘disallow’ his applications for review, and to do so on the abovementioned ground that the relevant land ‘is or may be required for a public purpose’ (‘the public purpose ground’). Mr Kilpatrick considered that this would provide an alternative ‘trigger’ for the compensation claim that he wished to make in due course. Again, the statutory authority would have been the body liable ultimately for any compensation found to be due. However, following a last minute change of its position, the statutory authority contended at VCAT that Mr Kilpatrick’s applications for review should be ‘allowed’ rather than disallowed. It contended that the existing conditions, which the statutory authority itself had originally purported to require, should be removed. Had VCAT accepted that contention, Mr Kilpatrick’s intended claim for compensation (without sale) would have remained untriggered.
However, VCAT did not accept the statutory authority’s contention. Rather, VCAT was persuaded by Mr Kilpatrick to ‘disallow’ his applications for review and to do so on the public purpose ground. VCAT made its decision and order accordingly. That is what the statutory authority now challenges in this Court. Presumably, it does so because it wishes to escape being exposed to Mr Kilpatrick’s (latest) intended claim for compensation. Otherwise, the statutory authority may have no standing to bring this challenge.[4]
[4]See and compare City of Nunawading v Day [1992] 1 VR 211 (‘Day’), esp. at 236–237.
A challenge under s 148 of the VCAT Act to a decision of VCAT is brought by way of an application for leave to appeal, and, if leave is granted, an appeal on a question or questions of law (only). Procedurally, such a challenge is commenced by filing and serving a notice of appeal. Leave to appeal is discretionary and cannot be given unless the Court is satisfied that the proposed appeal has a ‘real prospect’ of success: s 148(2A). A ‘real’ prospect of success means “that the appeal has a ‘real’ as opposed to a ‘fanciful’ chance of success”.[5] Even if leave to appeal is granted and an error of law is shown, the grant of any relief is discretionary.
[5]Kennedy v Shire of Campaspe [2015] VSCA 47, [12] (Whelan and Ferguson JJ); Club Fogolar Furlan Melbourne v Paramount Investments Group Pty Ltd [2024] VSC 208, [10] (Croft J) (‘Club Fogolar’); E. Nekvapil, Victorian Administrative Law (Update 202), [VCAT.148.160] (‘Nekvapil’).
In the present case, the proposed appeal has been heard together with the application for leave to appeal. The matter arises within an intricate legal and factual framework. The amended notice of appeal is complex and cryptic and studded with footnotes. Prior to the oral hearing in this Court, the statutory authority filed and served a lengthy, detailed outline of its submissions attacking VCAT’s order and reasons and, later, a lengthy, detailed outline of its reply to the responsive written submissions that Mr Kilpatrick had filed and served in the meantime. The oral hearing in this Court took 2½ days, spread over a period of about six weeks. The statutory authority’s attack on VCAT’s decision must fail. A key feature of this case is that Mr Kilpatrick’s applications to the Council for permits were of a test or token nature, and that his applications to VCAT for review were also of a test or token nature. Mr Kilpatrick’s approach was lawful. Indeed, it accorded with a long established practice in this State based on a certain understanding of the operation and effect of the provisions of the PEA associated with the public purpose ground, being an understanding which is supported by Supreme Court authority and has become conventional.[6] In substance, VCAT adopted that understanding. There is no proposed ground of appeal attacking the availability to landholders of the test or token approach. At an early stage of the oral hearing before me, I put to senior counsel for the statutory authority that large parts of his case seemed to assume that test or token applications were illegitimate and that applications of that nature should be dealt with as though they were not of that nature. In response, he expressly acknowledged that he would need leave to further amend the amended notice of appeal to warrant an attack on the legitimacy and effectiveness of test or token applications and that he would need instructions before applying for such leave.[7] After obtaining instructions, he expressly declined to seek such leave.[8] On the other hand, in a self-contradictory fashion, the statutory authority still persists with all of its original arguments in this Court, including all those arguments which assume, wrongly, that test or token applications are illegitimate or ineffective, or should be dealt with as though they were not of a test or token nature. This is a major weakness in the statutory authority’s case.
[6]See [78] below of this judgment, and see in particular the footnoted (n 87) reference therein to Day (n 4) 213, 214, 215, 216, 218, 223 and 224 (especially at 223). As explained in detail below, at VCAT, the statutory authority accepted (at least ultimately) the legitimacy of the test or token approach that had been adopted by Mr Kilpatrick. And in this Court, as I am about to mention, the statutory authority pointedly declined to challenge it directly. On the other hand, the statutory authority, by its senior counsel, went on to indicate that it did not necessarily accept that the approach adopted by Mr Kilpatrick represented a ‘practice’, or a long established practice, or that the understanding of the relevant legislation on which Mr Kilpatrick’s approach had been based was ‘conventional’: see esp. [331] below of this judgment.
[7]Transcript of Proceedings, Head, Transport for Victoria v Kilpatrick & Anor (Supreme Court of Victoria, S ECI 2022 002105, Cavanough J, 9 and 13 June 2023) (‘SCV 9 and 13 June transcript’) 30-33. Note that the transcript of the hearing before Cavanough J on 24 July 2023 (other than date, citation as just noted) (‘SCV 24 July transcript’) has new and separate page numbering, commencing at page 1.
[8]Ibid 65-66. See [324]–[332] below of this judgment.
Further, whereas VCAT was (appropriately) satisfied that the manner in which Mr Kilpatrick advanced his applications to VCAT was legitimate, VCAT said that it did not accept that the statutory authority had come to VCAT with ‘clean hands’.[9] This was not so much a reference to the equitable doctrine of ‘clean hands’,[10] but rather a summary description by VCAT of a finding that it made to the effect that the statutory authority had carried out its statutory role in relation to Mr Kilpatrick’s applications to the Council for planning permits otherwise than in good faith and had put to VCAT a position that it had arrived at otherwise than in good faith. In short, VCAT found in effect that the statutory authority’s actions were motivated by a rigid determination to avoid paying further statutory compensation to Mr Kilpatrick for planning blight. There is no challenge, or at least no proper challenge,[11] by the statutory authority to VCAT’s finding that the statutory authority lacked ‘clean hands’, except that the statutory authority contends, wrongly, that the finding was irrelevant.
[9]Kilpatrick v Wyndham (n 1) [43]–[46].
[10]See, generally, Klein v Mochkin [2024] VSCA 174, [62]–[67].
[11]See [333]–[342] below of this judgment.
There are various proposed grounds, sub-grounds and particulars of appeal in the amended notice of appeal. In brief summary, the statutory authority asserts:
(a) that VCAT had only review jurisdiction in this matter, but wrongly purported to exercise original jurisdiction that had not been invoked and that it did not have;
(b) that VCAT’s decision and order was of a kind not available to it in either its review jurisdiction or in its original jurisdiction;
(c) that VCAT omitted to carry out steps that it was required to carry out in the proper exercise of any review jurisdiction available to it;
(d) that VCAT failed to take into account certain considerations that it was obliged to take into account in the proper exercise of any such review jurisdiction;
(e) that certain findings reached by VCAT were not open to VCAT in the circumstances;
(f) that VCAT took into account an allegedly irrelevant matter, namely that the statutory authority had not come to VCAT with ‘clean hands’.[12]
[12]See above.
Thus the statutory authority’s attacks on VCAT’s decision-making are quite broad-ranging. In addition, many of its arguments are convoluted or obscure. Nevertheless, as I have already indicated, insofar as the statutory authority’s arguments involve implied attacks on the legitimacy or the effect of test or token applications, the statutory authority travels beyond its amended notice of appeal, and it contradicts itself. Further, the statutory authority, without acknowledging it, seeks in effect to depart in this Court from concessions that it made at VCAT. This includes concessions it made there as to the legitimacy and effect of test or token applications, as to the facts and as to the limited nature of the issues before VCAT. On analysis, the whole of the statutory authority’s case in this Court has a very hollow ring. Nevertheless, at the oral hearing in this Court, immediately after expressly declining to seek leave to amend (as mentioned above), senior counsel for the statutory authority told me that his client sought my adjudication on ‘each and every one’ of the grounds in its amended notice of appeal.[13] Later, after considerable further testing of the statutory authority’s arguments over almost two days, senior counsel for the statutory authority told me that he wished to be ‘very clear’ that his client ‘relies upon its written submissions and its amended notice of appeal’, and that his client ‘does not in any way concede any matters that are contained in those written submissions and the amended notice of appeal’.[14] As a result, I have felt it necessary to describe VCAT’s jurisdiction, functions and powers in some detail; to refer in some detail to the principles relating to appeals from VCAT to this Court; to explain the background to the dispute between the parties; to refer in detail to the relevant provisions of the PEA; to give a detailed, chronological account of what happened before and during the VCAT hearing (including an account of the evidentiary material that was before VCAT and a detailed, chronological account of the written and oral submissions that were made by the parties to VCAT); to refer in detail to VCAT’s decision and reasons; to recount the parties’ written submissions to this Court and to analyse them closely; and to deal at some length with a series of things that occurred during, or that emerged from, the oral hearing. Unfortunately this has necessitated a very long judgment, with a considerable amount of repetition. However, in relation to the headline assertions of the statutory authority as outlined above, I can summarise my conclusions as follows:
[13]SCV 9 and 13 June transcript (n 7) 66.
[14]Ibid, 270.
(a) that although it is true that VCAT had only review jurisdiction in this matter, VCAT was well aware of that and did not purport to exercise any original jurisdiction;
(b) that, in any event, VCAT’s decision and order was of a kind available to it in the proper exercise of its review jurisdiction;
(c) that VCAT did not omit to take any steps required of it in the proper exercise of its review jurisdiction;
(d) that VCAT did not fail to take into account any obligatory considerations;
(e) that VCAT did not arrive at any findings that were not open to it in the circumstances; and
(f) that there was nothing irrelevant (or otherwise inappropriate) about VCAT’s finding that the statutory authority had not come to VCAT with clean hands.
Even if VCAT did erroneously believe that it was exercising original jurisdiction rather than review jurisdiction, or made some other mistake about the source of its jurisdiction or powers, nevertheless, its decision and order would not necessarily have fallen to be set aside on that account. In fact, on established principles of public law,[15] the decision and order would not have failed on that account because, as I will later explain:
[15]See and compare Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1, 16–17 [34], referred to more extensively in [21] below of this judgment.
(a) VCAT did possess review jurisdiction;
(b) VCAT did have the power, in the exercise of that jurisdiction, to make the decision and order that it made; and
(c) VCAT did not fail to meet any statutory pre-conditions for doing so.
In VCAT’s view, in respect of the issues that were actually joined between the parties at VCAT, the statutory authority failed on the facts and on the relevant discretionary considerations. Those considerations were essentially planning considerations connected with the compensation-related public purpose ground. VCAT’s view was well open to it.
These conclusions are more than enough to defeat the proposed appeal. Indeed, it is enough to defeat the proposed appeal that the statutory authority has failed to satisfy me that VCAT in fact made the alleged errors of law. I would add that if, contrary to my view, VCAT’s reasons for decision do reveal some misunderstanding of the relevant statutory provisions or other error of law, the statutory authority has failed to satisfy me that any such error was material to the outcome. VCAT’s finding that the statutory authority lacked ‘clean hands’ duly supported VCAT’s decision, and it is also a factor relevant to the question of whether leave to appeal should be granted or refused. It might also have been relevant to the matter of the Court’s residual discretion to dismiss the appeal had the statutory authority been able to establish any of its proposed grounds of appeal, but that need not be decided.
Nevertheless, given that VCAT’s reasons for decision could have been expressed more felicitously, and given the legal and factual complexity of this case, I accept that the prospects of success of the proposed appeal could be described as better than ‘fanciful’, albeit only barely. In those circumstances, and having regard to the contention by the statutory authority that this is a case of general importance, I will grant leave to appeal. However, the appeal will be dismissed.
VCAT generally, its jurisdictions and its main functions and powers
It is useful to recall some basic propositions about VCAT. It is a tribunal created by statute.[16] Its ‘jurisdiction derives entirely from statute’.[17] It has only two types of jurisdiction: original jurisdiction and review jurisdiction.[18] VCAT ‘does not possess general civil jurisdiction but only has original jurisdiction in respect of specific kinds of disputes and claims’.[19] VCAT ‘does not have jurisdiction unless that jurisdiction is conferred on it by an ‘enabling enactment’.[20] An ‘enabling enactment’ is an enactment (i.e. an Act or subordinate instrument) by or under which jurisdiction is conferred on VCAT.[21] VCAT’s original jurisdiction is ‘the jurisdiction of the Tribunal other than its review jurisdiction’.[22] So far as presently relevant, VCAT’s original jurisdiction is invoked ‘by a person who is entitled by or under an enabling enactment to do so applying to the Tribunal in accordance with s 67’.[23] In exercising its original jurisdiction, VCAT has the functions conferred on it by or under the enabling enactment, as well as any functions conferred on it by or under the VCAT Act or the regulations or the rules made under that Act.[24] VCAT’s review jurisdiction is jurisdiction conferred on VCAT ‘by or under an enabling enactment to review a decision made by a decision-maker’.[25] A ‘decision-maker’ is a person who makes, or is deemed to have made, a decision under an enabling enactment.[26] In s 4 of the VCAT Act, a very wide meaning is given to the concept of a person who ‘makes a decision’. The concept extends to a person who ‘imposes a condition’.[27] So far as presently relevant, VCAT’s review jurisdiction is invoked where a person, being entitled to do so by or under an enabling enactment, applies to the Tribunal for review of a decision under that enactment, doing so in accordance with s 67 of the VCAT Act, or in any other way permitted or provided for by the enabling enactment.[28]
[16]Though established as a tribunal, VCAT has been held to be a court for some limited purposes in particular statutory contexts: see Nekvapil (n 5) [VCAT 8.60].
[17]Director of Housing v Sudi (2011) 33 VR 559, 564 [19] (Warren CJ) (‘Sudi’). See also my judgment in McKechnie v VCAT (2020) 62 VR 54, 100 [113] (‘McKechnie’). And see Nekvapil (n 5) [VCAT.40.40].
[18]Victorian Civil and Administrative Tribunal Act (‘VCAT Act’), s 40.
[19]Sudi (n 17) [36] (Warren CJ); Nekvapil (n 5) [VCAT.40.40].
[20]Hamilton v Russell Kennedy Pty Ltd (No 3) [2012] VSC 189, [36] (Lansdowne AsJ); Nekvapil (n 5) [VCAT.40.40].
[21]VCAT Act (n 18) s 3 (definitions of ‘enabling enactment’ and ‘enactment’); McKechnie (n 17) [113].
[22]VCAT Act (n 18) s 41.
[23]Ibid s 43(a).
[24]Ibid s 44.
[25]VCAT Act (n 18) s 42(1); McKechnie (n 17) [113].
[26]VCAT Act (n 18) s 3 (definition of ‘decision-maker’); McKechnie (n 17) [113].
[27]VCAT Act (n 18) s 4(1)(d).
[28]Ibid s 48(a) and (c).
The identification of any relevant jurisdiction (original or review) of VCAT in a particular case is one thing.[29] The identification of the relevant powers (express or implied)[30] available to VCAT in the exercise of its relevant jurisdiction is another. The characterisation of steps taken (or not taken) by VCAT is yet another. Because there are issues in the present case about what VCAT had authority to do, and about what it actually did, it is desirable to have regard not only to the relevant provisions of the applicable ‘enabling enactment’ (here, the PEA) which I will come to in due course, but also, and first, to certain general provisions of the VCAT Act. In particular, regard should be had to s 51 of the VCAT Act, and also to ss 75, 76, 93, 98, 116, 117, 124 and 130 of that Act. Section 51 of the VCAT Act deals with the ‘functions’ of VCAT on review. The word ‘function’ is defined in s 3 of the VCAT Act to include ‘jurisdiction, power, duty and authority’. Section 51 provides:
[29]See, generally, Nekvapil, (n 5) [VCAT 40.40] and [VCAT 41.40] and the cases there cited. See in particular my judgment in Tucci v Victorian Civil and Administrative Tribunal (2010) 33 VAR 206.
[30]In the present case, the statutory authority seemed to be submitting, at one stage, that VCAT has no implied powers at all: see [255] below of this judgment. However, that would be plainly wrong: ibid.
51. Functions of Tribunal on review
(1)In exercising its review jurisdiction in respect of a decision, the Tribunal—
(a)has all the functions of the decision-maker; and
(b)has any other functions conferred on the Tribunal by or under the enabling enactment; and
(c)has any functions conferred on the Tribunal by or under this Act, the regulations and the rules.
(2)In determining a proceeding for review of a decision the Tribunal may, by order—
(a)affirm the decision under review; or
(b)vary the decision under review; or
(c)set aside the decision under review and make another decision in substitution for it; or
(d)set aside the decision under review and remit the matter for re-consideration by the decision-maker in accordance with any directions or recommendations of the Tribunal.
(3)Subject to subsection (4), a decision of a decision-maker as affirmed or varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a decision-maker—
(a)is deemed to be a decision of that decision-maker; and
(b)subject to any contrary order by the Tribunal, has, or is deemed to have had, effect from the time at which the decision under review has or had effect.
(4)Subsection (3)(a) does not apply for the purposes of—
(a)an application to the Tribunal for review of the decision; or
(b)an appeal under Part 5.
(5)If an applicant does not appear (personally or by representative) at the hearing of a proceeding for review of a decision, the Tribunal must confirm the decision.
Sections 75, 76, 93, 98, 116, 117, 124 and 130 of the VCAT Act apply in relation to both the review jurisdiction and the original jurisdiction of VCAT. Section 75 provides that VCAT may summarily dismiss or strike out a proceeding it considers to be frivolous, vexatious, misconceived, lacking in substance or an abuse of process. Section 76 authorises VCAT to dismiss a proceeding for want of prosecution. Under s 93, VCAT may dismiss a proceeding to give effect to a settlement between the parties. Section 98(1)(b) empowers VCAT to adopt the practices and procedures of courts of record. Under s 98(3), VCAT may regulate its own procedure. Section 116 provides that an order of VCAT must be in writing and must be authenticated in accordance with the VCAT Rules, and that copies of the order must be provided to the parties. Section 117 provides that VCAT must give reasons for any final order; that if VCAT gives written reasons, VCAT must include in those reasons its findings on material questions of fact; and, importantly for present purposes, that the reasons for an order, whether oral or written, form part of the order (see s 117(6)). Section 124 provides that VCAT may make a declaration concerning any matter in a proceeding instead of any orders it could make, or in addition to any orders it makes, in the proceeding; and that this power is in addition to, and does not limit, any power of VCAT under an enabling enactment to make a declaration. Section 130 provides that a power of VCAT to make an order or other decision includes a power to make the order subject to any conditions or further orders that VCAT thinks fit. Under s 130(2), such conditions or further orders may include an adjournment, an order for costs, a requirement to give notice or to give an undertaking, or, notably, ‘a condition or order necessary or desirable to give effect to an order or other decision’.[31]
[31]Ibid s 130(2)(e).
It is often said that, by virtue of provisions like s 51 of the VCAT Act (set out above), tribunals such as VCAT, when exercising their review jurisdiction, ‘step into the shoes’ of the original decision-maker and make a fresh or de novo decision on the same question or matter, but on the evidentiary material before the tribunal, as distinct from the evidentiary material that had been before the original decision-maker, and taking into account any relevant facts that may have occurred since the time of the original decision. That is usually true.[32] And, usually, the substantive law that applied to the making of the original decision, if that law be unamended, also applies to the review by the relevant tribunal of the original decision. On the other hand, those usual features of review tribunals are subject to any express or implied statutory provision to the contrary; and they may be affected by the nature or circumstances of the decision under review or by the nature of the case that the moving party in the tribunal wishes to advance.[33] In addition, there are two particular aspects of VCAT’s review jurisdiction in planning matters that should be noted. First, whereas local Councils are bound by (valid) directions given under certain provisions of the PEA by certain statutory referral authorities, VCAT is not bound by such directions.[34] Secondly, and more broadly, by virtue of Schedule 1 to the VCAT Act, VCAT’s powers to resolve planning issues can sometimes be more extensive than those of other bodies whose decisions VCAT may review.[35]
[32]See, e.g. Miller v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 13; (2024) 98 ALJR 623 [14]; Frugtniet v ASIC (2019) 266 CLR 250, 271 [51].
[33]McDonald v Guardianship Board [1993] 1 VR 521, 528–530 (Supreme Court of Victoria – Appeal Division (Fullagar, Tadgell and JD Phillips JJ)). See also my judgment in Laming v Racing Victoria [2022] VSC 813, [16] and the cases there cited, including Forbes v Vucadinovic [2018] VSCA 138. Forbes was an appeal under s 148 of the VCAT Act that was determined, ultimately, by the Court of Appeal. It related to a planning matter under the PEA. At [25]–[41], Emerton AJA (as Emerton P then was) (with whom Tate and Niall JJA agreed) considered the law relating to the ‘rule of practice’ to the effect that a tribunal like VCAT generally considers the facts and circumstances as they exist at the time of its own decision. At [40], Emerton AJA said that ‘where an enabling enactment expressly or impliedly requires a review to be conducted by reference to the factual position at a particular point in time, that requirement must be complied with’.
[34]Roads Corporation v McCarthy [2004] VSC 369 (Osborn J), [19]–[51], especially at [24] and [50] (‘McCarthy’). See further below.
[35]VCAT also has original jurisdiction, as distinct from review jurisdiction, in certain planning and related matters. Schedule 1 applies in relation to both kinds of jurisdiction. See further below.
Principles relating to appeals from VCAT
Section 148 of the VCAT Act is potentially applicable to all VCAT decisions and orders, whether made in VCAT’s original jurisdiction or in its review jurisdiction. In Hoskin v Greater Bendigo City Council,[36] a case relating to an exercise of VCAT’s review jurisdiction in respect of planning matters, the Court of Appeal said of appeals under s 148 of the VCAT Act:[37]
Such an appeal is limited to an appeal on questions of law.
It is not open to this Court to entertain further debate as to the merits of the Tribunal’s decision on the facts. It is only if a conclusion on the facts was not open to it that an error with respect to factual matters will involve a question of law.
This Court’s function is limited to the exercise of a supervisory jurisdiction intended to ensure that the merits review which the Tribunal carried out was undertaken in accordance with its statutory obligations.
[36]Hoskin v Greater Bendigo City Council (2015) 48 VR 715 (Court of Appeal) (‘Hoskin’).
[37](2015) 48 VR 715, 720 [9]–[11]. Paragraph numbers and footnotes omitted. See also Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 207 CLR 72, 79 [15] (Gaudron, Gummow, Hayne and Callinan JJ); Osland v Secretary, Department of Justice [No 2] (2010) 241 CLR 320, 351 [71] (Hayne and Kiefel JJ); Mintfield Pty Ltd v Commissioner for State Revenue [2023] VSC 317 (‘Mintfield’) [5], [11] (Croft J).
Likewise, in Mintfield Pty Ltd v Commissioner of State Revenue,[38] being an application for leave to appeal under s 148 in respect of an exercise by VCAT of its review jurisdiction in State taxation matters, Croft J said:[39]
…any appeal [under s 148] is dependent upon two important qualifications. First, that the appeal be on a question of law, and secondly, that the Court gives leave to appeal. The legislative policy underlying these provisions is that “VCAT decisions should not generally be disturbed where cases have been decided in that forum other than on questions of law and where there is something about the decision bearing upon the question of law which warrants a grant of leave to appeal”. It follows that “[t]his Court is not entitled to enter into the fact finding exercise which the legislature has deliberately entrusted to a specialist Tribunal”.
Croft J repeated these statements (with supporting authority) in Club Fogolar Furlan Melbourne v Paramount Investments Group Pty Ltd,[40] which was an application for leave to appeal under s 148 in relation to an exercise by VCAT of its original jurisdiction in leasing disputes.
[38]Mintfield (n 37).
[39]Ibid [5]. Footnotes omitted.
[40]Club Fogolar (n 5) [7].
In an appeal under s 148 of the VCAT Act, the appellant, in order to succeed, must demonstrate that VCAT went wrong in law in arriving at its decision. It is not enough for the appellant to show that VCAT’s reasons for its decision are so expressed as to suggest the possibility that VCAT proceeded on a wrong view of the law. This Court is not entitled to interfere with the decision unless it is satisfied that there was, in fact, a vitiating error of law.[41]
[41]Hoskin (n 36) 745 [100] ; Mintfield (n 37) [9]; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610, [13] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jago JJ) (‘LPDT’).
An error of law will not be a vitiating error unless it is material, that is, unless there is a realistic possibility that VCAT’s decision could have been different, and more favourable to the appellant, if the error of law had not occurred.[42] The onus of establishing the materiality of an accepted error lies on the appellant (or, correspondingly, where a decision is challenged by way of judicial review for jurisdictional error, on the plaintiff).[43] A long established, related principle of law, which applies specifically to mistakes made by administrators as to the source of their power, has been authoritatively stated by the High Court in the following terms (footnotes omitted):[44]
A mistake by an administrative decision-maker as to the source of his or her power to make a decision does not necessarily invalidate the decision if it is able to be supported by another source of power. Whether it can be supported by the other source of power will depend upon whether that power is subject to requirements which the decision-maker has failed to meet because of his or her belief as to the source of the power or for some other reason. As Heydon J said in Eastman v Director of Public Prosecutions (ACT):
If the maker of an administrative decision purports to act under one head of power which does not exist, but there is another head of power available and all conditions antecedent to its valid exercise have been satisfied, the decision is valid despite purported reliance on the unavailable head of power.
[42]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 353, 384; RSSB Australia Pty Ltd v Ross [2017] VSC 314, [34] (Emerton J); Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; Minister for Immigration and Border Protection v SZMTA (2019) 265 CLR 421; Comptroller-General of Customs v Pharm-A-Care Laboratories Pty Ltd (2020) 270 CLR 494, 513 [40]; MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506, 514 [2] (‘MZAPC’); LPDT (n 41) [7]–[16].
[43]MZAPC (n 42) 514 [2]–[3], 524–525 [39]–[40], 531 [60]; LPDT (n 41) [7]–[16].
[44]Australian Education Union v Department of Education and Children’s Services (2012) 248 CLR 1, 16–17 [34] (French CJ, Hayne, Kiefel and Bell JJ). Their Honours cited eight prior High Court or Federal Court cases to the same effect, the earliest having been decided in 1942.
VCAT’s reasons are to be read fairly and as a whole, without over-zealous scrutiny.[45] In Secretary to the Department of Justice & Regulation v OUX,[46] the Court of Appeal said:[47]
Under s 148 of the VCAT Act, this Court’s jurisdiction is, as we have mentioned, limited to the resolution of questions of law. In a not dissimilar legislative context, this limitation has been said to impose a “significant constraint” upon the role of the Court in reviewing a Tribunal’s decision. This “practical as well as principled restraint” means that the Court “will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal’s thoughts”. Hence, the reasons of the Tribunal for the decision under review “are not to be construed minutely and finely with an eye keenly attuned to the perception of error”. The reality is “that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”. We have endeavoured to take a broad and practical approach to the interpretation of the Tribunal’s reasons, bearing the foregoing principles steadily in mind.
Recently, in Sandbach v Victorian Legal Services Commissioner,[48] the Court of Appeal discussed, to much the same effect, the legal principles applicable to appeals and applications for leave to appeal under s 148 of the VCAT Act. More recently still, the Court of Appeal has emphasised that any appeal under s 148 must be limited to a question of law as distinct from a question of fact, and has referred to the ’significant constraint’ that s 148 imposes on the role of this Court.[49]
[45]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272; Medical Board of Australia v Liang Joo Leow [2019] VSC 532 (Niall JA); Nekvapil (n 5) [VCAT 148.302].
[46][2018] VSCA 178 (Priest, Beach and Weinberg JJA) (‘OUX’).
[47]Ibid [36]. Citations omitted. Followed and applied in Residential Aged Care Services v Stonnington City Council [2018] VSC 652 [65]–[68], esp. at [67] (Garde J) and in Ritchies Stores Pty Ltd v Kingston City Council [2022] VSC 495, [50] (Richards J) (‘Ritchies’).
[48][2024] VSCA 143, [52]–[58]; see also [189]–[192].
[49]Secretary to the Department of Justice and Community Safety v TXD & Anor [2024] VSCA 169, [21]–[22].
Further, VCAT’s reasons should be read in context, and the context will often include the way in which the proceeding was conducted before VCAT.[50] Thus, in The Gombac Group Pty Ltd v Vero Insurance Ltd,[51] Osborn J said that, in an appeal under s 148, there is a need for this Court to recognise the ‘forensic realities’ of the way in which the case was put to VCAT. Gombac was decided in 2005.[52] The appellant was a building company. It had sought review[53] by VCAT of a decision of a statutory insurer allowing a claim by the purchaser of a house for defective flooring work. Ultimately, VCAT dismissed the building company’s application for review. The building company’s appeal to the Trial Division of this Court under s 148 also failed. In answer to one of the building company’s grounds of appeal, Osborn J said, in part:[54]
[50]Ritchies (n 47) [50].
[51][2005] VSC 442, [59] (‘Gombac’).
[52]Gombac was decided before the introduction of s 148(2A) of the VCAT Act. Leave to appeal had apparently been granted to the appellant.
[53]Gombac (n 51) [12], [50].
[54]Ibid [57]–[59]. My emphasis. Paragraph numbering omitted. Footnote retained but renumbered. See also Mintfield (n 37) [9], and Club Fogolar (n 5) [11], where, in each case, Croft J quotes with approval the last two sentences of this passage.
The third answer to the second ground of appeal is that the parties joined issue before the Tribunal on the basis of particulars of claim, in which the appellant alleged it was entitled to relief in substance:
(a)because the floor was installed with satisfactory moisture content; and
(b)because the defects resulted from the failure to properly protect the floor from damage after installation and in particular a failure to prevent damage due to direct sunlight and lack of ventilation.
Both these propositions were put in final submission to the Tribunal on behalf of the appellant, although the evidentiary basis upon which they were argued changed from that initially put forward by the appellant as a result of the course of the evidence before the Tribunal.
If neither of these propositions were accepted by the Tribunal, it is difficult to see that it erred in law in rejecting the appellant’s claims. It addressed the claim on the very basis it was invited to by the appellant. The Tribunal was required to engage in the practical task of resolving fairly the issues which had been presented to it by the parties.[55] On appeal, this Court must recognise the forensic realities of the way in which the case was put to the Tribunal. It is these realities to which a Tribunal must respond in its reasons.
[55]See VCAT Act (n 18) s 98(1).
I observe that, in the footnote to the third last sentence of the above passage of his Honour’s judgment, Osborn J cited s 98(1) of the VCAT Act. That subsection provides, in short: (a) that VCAT is bound by the rules of natural justice; (b) that VCAT is not bound by the rules of evidence; (c) that VCAT may inform itself on any matter as it sees fit; and (d) that VCAT must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of the VCAT Act and the enabling enactment and a proper consideration of the matters before it permit. Sub-section 98(1) (like the abovementioned ss 116, 117 and 124 of the VCAT Act and like s 148 itself) is applicable to proceedings in both VCAT’s original jurisdiction and its review jurisdiction.
Thus, in Secretary to the Department of Economic Development, Job, Transport and Resources v Avid Property Group Nominees Pty Ltd (‘Avid’),[56] in relation to a land valuation and compensation matter that had been dealt with in VCAT’s original jurisdiction, the Court of Appeal (dismissing an appeal from Emerton J) referred to s 98(1)(d) of the VCAT Act,[57] and went on to say:[58]
There was no error of law [by VCAT] in determining only the issues raised by the parties before it.
[56][2017] VSCA 136 (‘Avid’).
[57]Ibid [108].
[58]Ibid [109].
Similarly, the Court of Appeal said:[59]
The Tribunal made no error of law in proceeding upon the factual basis accepted, and implicitly agreed to, by the parties before it.
[59]Ibid [110(1)].
In Avid, Emerton J had refused to allow the appellant to raise a new point on the s 148 appeal. The Court of Appeal affirmed this exercise of Emerton J’s discretion. The Court of Appeal’s reasons for this included:
(a) that the new point had not been argued before the Tribunal and the opposing party might have addressed further evidence if it had been in issue;
(b) that there is a strong public interest in maintaining the finality of decisions with respect to contested claims, and, conversely, a strong public interest weighing against the taking of points only upon appeal;[60] and
(c) that these considerations have particular force in the case of a tribunal, which it is apparent the legislature intended to act speedily and in an informal manner.[61]
[60]Ibid [111(2)]. The same point was made in relation to an appeal to this Court from a decision made by the former Administrative Appeals Tribunal of Victoria on review of a decision of the Emergency Services Superannuation Board concerning entitlement to a disability pension: Rampling v Emergency Services Superannuation Board (1994) 6 VAR 199, 213 (Brooking J, with whom Fullagar and Ormiston JJ relevantly agreed) (‘Rampling’). The High Court has also made the same point in relation to an appeal to the Supreme Court from a decision of VCAT in its original jurisdiction: Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1, 18 [41]‑[44] (French CJ, Kiefel and Bell JJ) (‘Crown Melbourne’).
[61]Ibid [111(3)].
In addition – in relation to VCAT’s review jurisdiction with respect to decisions on planning permits under Part 4 of the PEA and under the applicable general provisions of the VCAT Act – s 84AB of the PEA specifically provides that, if all parties agree, VCAT may confine, to particular matters in dispute, a review in respect of an application made under one or other of certain listed sections of Part 4 of the PEA. That list includes the section relevant to the present case, namely s 80 of the PEA.[62] Where it applies, s 84AB modifies the operation of s 84B of the PEA. Section 84B, in turn, specifies what VCAT must (otherwise) take into account in determining an application for review under Part 4 of the PEA.
[62]See below at [67] of this judgment.
I acknowledge that the general principle that parties should usually be bound by the way they ran their case at first instance is ‘not applicable where questions of jurisdiction are concerned’[63] and that questions of jurisdiction ‘should be decided on their merits and not by reference only to arguments that are put by the parties’.[64] But, as will be seen, in the present case there is in truth no doubt about the jurisdiction of VCAT.
[63]Secretary, Department of Environment, Energy and Climate Action v Hanson Construction Materials Pty Ltd [2023] VSC 353 [53] (Gorton J).
[64]Ibid, citing Federated Engine-Drivers’ and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398, 415 and Thurin v Krongold Constructions (Aust) Pty Ltd (2022) 407 ALR 187, [128] (Victorian Court of Appeal). See also Muto v Department of Planning and Community Development (2013) 38 VR 293, 298 [21] (Nettle and Neave JJA), citing Morris v Riverwild Management Pty Ltd (2011) 38 VR 103, 109 [21]. In addition, see my judgment in Marshall v Emergency Services Superannuation Board (No 2) [2022] VSC 122, [6] and Certain Underwriters at Lloyds v Shangri-La Construction Pty Ltd (In liq) [2024] VSC 556, [20]–[21] (Garde J).
I acknowledge, also, that the Court is not bound by the arguments of parties (or of their counsel) on questions of statutory interpretation.[65] That is all the more evident in relation to questions of statutory interpretation concerning the existence or extent of the jurisdiction or powers of a relevant court, tribunal or other body. On the other hand – due to the significance of any interference by this Court with the course of public administration – the mere fact that a sole respondent to an appeal from a decision made by VCAT in its review jurisdiction fails to answer, adequately or appropriately, some attack made by the appellant on the decision does not mean that this Court is bound to accept that the attack is justified. Even where a sole respondent is prepared to consent to an order setting aside a decision of VCAT, this Court is not thereby obliged to set it aside.[66] In any event, in the present case, Mr Kilpatrick has staunchly and appropriately defended VCAT’s decision; and, as mentioned above, I do not consider that VCAT’s decision involved any error of law at all. Consistently with that view, I note again that the statutory authority (which was represented before me by senior and junior counsel) has chosen not to attack the validity or effectiveness of test or token permit applications (generally) or the validity or effectiveness of test or token applications to VCAT for review in respect of such permit applications. If test or token applications to VCAT for review are valid and effective (as I consider them to be), then, as will appear, there is very little left of the statutory authority’s attack on VCAT’s decision in this case.
[65]D. Pearce, Statutory Interpretation in Australia (LexisNexis, 10th ed, 2024) [1.12] and cases there cited (‘Pearce’).
[66]See paragraph 8.1 of the Judicial Review and Appeals List Practice Note of this Court, citing Irwin v Military Rehabilitation and Compensation Commission (2009) 174 FCR 574, 577 [12]-[16] and Kovalev v Minister for Immigration and Multicultural Affairs (1990) 100 FCR 323. Usually, VCAT will not be a party to a proceeding in this Court under s 148 of the VCAT Act: see Nekvapil (n 5) [VCAT 148.455].
Turning to the statutory requirement for leave to appeal, I note again that, by virtue of s 148(2A) of the VCAT Act, which was introduced in 2017, the Trial Division may grant an application for leave to appeal under s 148 only if it is satisfied that the proposed appeal has a ‘real prospect of success’. As mentioned above, this test has been equated to a requirement that the appeal have a ‘real’, as opposed to a ‘fanciful’ chance of success.[67] More generally, in Mintfield, Croft J said:[68]
The new requirement of s 148(2A) makes express the restraint this Court ought exercise when reviewing decisions of VCAT; a restraint long and more generally recognised in case authority. In considering cases of this nature, courts have been concerned to respect the role entrusted by the legislature to the particular tribunal and not, in effect, subvert this position by seeking out error. Thus, Kirby J in Roncevich v Repatriation Commission said:
Courts conducting this form of review have been repeatedly enjoined by this Court to avoid overly pernickety examination of the reasons. The focus of attention is on the substance of the decision and whether it has addressed the ‘real issue’ presented by the contest between the parties.
[67]See above.
[68]Mintfield (n 37) [9]. Citations omitted. Croft J repeated these particular observations in Club Fogolar, [11].
The Court retains a discretion in relation to leave, even if the Court considers that an appeal would have a real prospect of success.[69] Indeed, in a proper case, the Court may refuse leave to appeal without considering whether or not the applicant has a real prospect of success.[70] The applicant for leave must persuade the Court to exercise the discretion in the applicant’s favour.[71] The ‘overriding consideration in determining an application for leave to appeal under s 148 is the justice of the case as it appears to the Court. That means justice to all parties, not only the applicant for leave.’[72]
[69]Chopra v Department of Education and Training [2019] VSC 488, [23] (Richards J) (‘Chopra’).
[70]Bashour v ANZ & Ors [2020] VSC 478 [29]–[36] (Moore J).
[71]Commissioner of State Revenue v Frost (2011) 83 ATR 832, 833–4 [3] (Pagone J) (‘Frost’); Mintfield (n 37) [6].
[72]Chopra (n 69) [24], citing Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331, [16].
Even if leave to appeal under s 148 is granted and a vitiating error of law is shown on appeal, the Court still has a discretion, in appropriate circumstances, to dismiss the appeal.[73]
[73]See my judgment in Djime v Kearnes [2019] VSC 117, [4]-[5] and the cases there cited; Nekvapil (n 5) [VCAT 148.480].
Finally, it may be fitting for this Court to apply an even greater level of restraint – as to both applications for leave to appeal and appeals – in relation to decisions of VCAT involving planning disputes, as compared with decisions of VCAT in other fields. Part 16 of Schedule 1 to the VCAT Act contains a set of provisions (clauses 52 to 66 inclusive of Schedule 1) that, together with provisions such as the abovementioned s 84AB of the PEA, reflect what, in Rumpf v Mornington Peninsula Shire Council (‘Rumpf’),[74] Balmford J described as ‘the general legislative approach of giving the tribunal extensive powers to enable it to resolve planning issues which arise in the community and to resolve them according to the merits of the case.’[75] Similar observations have been made in numerous other cases.[76]
[74](2000) 2 VR 69 (‘Rumpf’).
[75]Ibid 89-90 [56]. See also at 78 [14]-[15] and cases cited therein. And see Nekvapil (n 5) [VCATAS1.62.10].
[76]See, for example, McCarthy (n 34) [50]; Harvey & Anor v Mutsaers & Ors [2012] VSCA 69 [26]–[30]; Myers v Southern Grampians Shire Council [2023] VSC 658 [92] (Quigley J); but cf Ritchies (n 47) [50].
The parties
The applicant in this Court is the Head, Transport for Victoria (‘HTV’). HTV is established as a body corporate under s 64A of the Transport Integration Act 2010 (‘the TIA’). Under s 64B of the TIA, the primary object of HTV is to coordinate, provide, operate and maintain the public transport system and the road system in Victoria. HTV is the successor in law of, among other entities, the former Roads Corporation. HTV was an active party at VCAT.
As mentioned above, the applicant at VCAT was, and the first respondent in this Court is, Mr John Kilpatrick. Mr Kilpatrick owns and farms land at Ballan Road, Wyndham Vale. The land is on several titles. The present matter relates to land within four of those titles. Mr Kilpatrick is the only active respondent in this Court.
The second respondent in this Court is Wyndham City Council. Mr Kilpatrick’s farm lies within the municipal area of Wyndham City Council. It was the Council that issued the planning permits in question, with the conditions that are now in controversy. The Council played a limited, secondary role at VCAT for a time, and ultimately took a neutral position there. It takes no active part in the present proceeding and will abide the result.
The basic factual background; the relevant planning instruments; the general tenor of the statutory provisions concerning financial compensation; and the potential liability of HTV
Wyndham Vale, where Mr Kilpatrick’s farm is located, lies on the north-western outskirts of the Melbourne metropolitan area. In 2010, at the instance of the Roads Corporation, parts of Mr Kilpatrick’s farm became covered by a reservation for a proposed major public road and rail corridor known as the Melbourne Metropolitan Outer Ring Road/E6 Transport Corridor (‘the Transport Corridor’). The curving strip of land reserved for the Transport Corridor is about 100 kilometres in length. The reservation takes the form of a Public Acquisition Overlay which has been inserted into four planning schemes, including the Wyndham Planning Scheme,[77] pursuant to s 6 of the PEA. It is known as Public Acquisition Overlay No 5 (‘PAO5’). In PAO5, it is expressly stated that a purpose of the overlay is ‘to reserve land for a public purpose’.[78] PAO5 remains in place. The land to which it applies cannot be developed, or be put to any new use, without a fresh planning permit. Any application for such a fresh planning permit must meet the relevant requirements of PAO5 as well as all other applicable requirements.
[77]See Statement of Underlying Provisions, prepared under s 6(2)(i) of the PEA, in relation to the Transport Corridor, CB 125, 2 . For s 6(2)(i), see below.
[78]This statement falls within ss 6(2)(c) and 98(1A) of the PEA (see below).
Victorian statute law provides for financial compensation for the compulsory acquisition of private land for public purposes. The principal provisions in that regard are in Part 3 of the Land Acquisition and Compensation Act 1986 (‘the LACA’).
Victorian statute law also provides for compensation, in certain circumstances, for land owners who suffer financial loss caused by their land being reserved or set aside for a public purpose in advance of a proposed compulsory acquisition. The principal provisions in that regard are in Part 5 of the PEA. These provisions, in turn, pick up and apply certain provisions of the LACA. Generally speaking, in order to ‘trigger’ a claim for compensation for pre-acquisition financial loss, an affected land owner must either sell the land in question or else (in effect) be refused or denied planning permission to develop the land in a particular way, or to use it in a particular new way, on the ground that the land is or may be required for a public purpose. The (effective) refusal or denial of planning permission might be done by the relevant ‘responsible authority’ at first instance or, in some circumstances, including in relation to planning conditions, by VCAT on review. Applications for planning permits, decisions on planning permit applications and applications to VCAT for the review of decisions on planning permit applications or conditions, are regulated, in the main, by Part 4 of the PEA.
The PEA includes provisions for identifying the entity which will be liable to pay any compensation payable under Part 5 of the PEA.[79] It is common ground that HTV is the entity liable to pay any such compensation that becomes payable as a result of the operation of PAO5. Thus, if Mr Kilpatrick were to become entitled to be paid compensation for financial loss attributable to PAO5, the entity liable to pay it would be HTV.
[79]PEA (n 3) s 109 (see below).
The relevant provisions of the PEA in more detail
The relevant version of the PEA is authorised version number 153, incorporating amendments as at 24 February 2022. I will treat that version as though it remains current, ignoring any subsequent amendments.
Like most legislation, the PEA should be read as a whole, notwithstanding that it is divided into Parts,[80] and it should be read in the order in which its provisions appear, i.e. from the beginning to the end.[81] The Parts of most relevance in this case are Part 1−Preliminary, Part 2−Planning Schemes, Part 4−Permits and Part 5−Compensation. There are some significant express or implied links between those particular Parts.
[80]Pearce (n 65) [4.2]–[4.5].
[81]Ibid [4.6].
As with Acts of Parliament generally, the text of the PEA must be construed in context and purposively.[82] I turn now to the text of the most relevant particular provisions of the PEA.
[82]Ibid [2.1], [2.9]–[2.17].
I begin with certain provisions contained in Part I−Preliminary. These start with s 1 (Purpose), which provides that the purpose of the PEA ‘is to establish a framework for planning the use, development and protection of land in Victoria in the present and long-term interests of all Victorians’.
Section 3 contains the following definition of ‘referral authority’:
referral authority means a body or person specified in a planning scheme as–
(a) a determining referral authority; or
(b) a recommending referral authority;
In turn, ‘determining referral authority’ is defined in s 3 as follows:
determining referral authority means, in relation to an application for a permit or an amendment to a permit, a person or body that a planning scheme specifies as a determining referral authority for applications of that kind.
Sub-section 4(1) states the objectives of planning in Victoria. The objectives stated in s 4(1)(a), (e), (f) and (g) are the most noteworthy for present purposes. They are:
(a)to provide for the fair, orderly, economic and sustainable use, and development of land;
…
(e)to protect public utilities and other assets and enable the orderly provision and coordination of public utilities and other facilities for the benefit of the community;
(f)to facilitate development in accordance with the objectives set out in paragraphs (a), (b), (c), (d) and (e);
…
(g) to balance the present and future interests of all Victorians.
Sub-section 4(2) states the objectives of the planning framework established by the Act. One of these stated objectives, as set out in s 4(2)(l), is ‘to provide for compensation when land is set aside for public purposes and in other circumstances’.
I turn now to Part 2−Planning Schemes.
Under s 6(1), a planning scheme for an area ‘must seek to further the objectives of planning in Victoria within the area covered by the scheme’: s 6(1)(a). A planning scheme ‘may make any provision which relates to the use, development, protection or conservation of any land in the area’: s 6(1)(b). Sub-section 6(2) provides, among other things, that a planning scheme may ‘designate land as being reserved for public purposes’: s 6(2)(c). A planning scheme ‘may designate a Minister, public authority or municipal council as an acquiring authority for the purposes of this Act for land reserved for public purposes’: s 6(2)(fa). It may ‘state the provisions of the planning scheme which would have applied to land reserved for a public purpose under the planning scheme if it had not been reserved for this purpose’: s 6(2)(i).
The identification of ‘the planning authority’ for various purposes of the Act is to be done under ss 8, 8A, 8B and 9, principally. Relevantly, s 8A(1) provides that a ‘municipal council is a planning authority for any planning scheme in force in its municipal district’.
Under s 12(1)(a), a planning authority must implement the objectives of planning in Victoria. Under s 12(3), a planning authority may do all things necessary to encourage and promote the orderly and proper use, development and protection[83] of land in the area for which it is a planning authority.
[83]My emphasis.
Section 13 identifies who will be a ‘responsible authority’ for various purposes of the Act. Subject to a presently irrelevant exception, s 13(2)(a) provides that the person who is the responsible authority is the municipal council, if the planning scheme applies to land which is wholly or partly in its municipal district. Under s 14(b), one of the duties of a responsible authority is to implement the objectives of the planning scheme.
Under s 14A, a referral authority must, in relation to any matter referred to it under the PEA, have regard to the objectives of planning in Victoria in considering the matter: s 14A(a). It must comply with the PEA: s 14A(c). And it must have regard to the planning scheme: s 14A(d).
I turn now to the salient provisions of Part 4−Permits.
Section 47 of the PEA provides, among other things, that if a planning scheme requires that a permit be obtained for a use or development of land, then an application for the permit must be made to the responsible authority in accordance with the regulations. Section 47 itself also imposes various requirements in respect of the making of an application for a planning permit, including that the application must state the estimated cost of any development for which a permit is sought. By virtue of s 48, an application for a permit may only be made by the owner of the relevant land or with the owner’s signature or after notification to the owner about the application.
Section 55 provides that a responsible authority must give a copy of an application for a permit and related information to each referral authority. Section 55(4) provides that a planning scheme may specify that a referral authority is ‘a determining referral authority’ or ‘a recommending referral authority’.
So far as relevant, s 56 provides:
56. Action by referral authority on application
(1)A referral authority must consider every application referred to it and may tell the responsible authority in writing that:
(a)it does not object to the granting of the permit; or
(b)it does not object if the permit is subject to the conditions specified by the referral authority; or
(c)it objects to the granting of the permit on any specified ground.
…
(3)The referral authority may also give the responsible authority its comments on the application.
…
Section 60 deals with matters that the responsible authority must or may consider. Pertinently, it provides:
60. What matters must a responsible authority consider?
(1)Before deciding on an application for a permit, the responsible authority must consider–
(a) the relevant planning scheme; and
(b) the objectives of planning in Victoria;
…
(d)any decision and comments of a referral authority which it has received;
…
Section 61 deals with decision-making by responsible authorities on permit applications. Sub-section (1) provides:
61. Decision on application
(1) The responsible authority may decide–
(a) to grant a permit; or
(b) to grant a permit subject to conditions; or
(c) to refuse to grant a permit on any ground it thinks fit.
Section 61(2) provides:
(2)The responsible authority must decide to refuse to grant the permit if a relevant determining referral authority objects to the grant of the permit.
Section 61(2A) provides:
(2A)The responsible authority may decide to refuse to grant a permit if a relevant recommending referral authority objects to the grant of the permit.
Section 62(1)(a) is as follows:
62. What conditions can be put on permits?
(1) In deciding to grant a permit, the responsible authority must–
(a)include any condition which the planning scheme or a relevant determining referral authority requires to be included.
Division 2 of Part 4 of the PEA provides for reviews by VCAT in respect of things done or not done by responsible authorities in relation to applications for permits. Division 2 comprises ss 77–86 (inclusive). It includes several ‘enabling enactments’ within the meaning of the VCAT Act. Among these enabling enactments are, relevantly, ss 77, 79 and 80.
Section 77 provides:
77. Applications for review of refusals to grant permits
An applicant for a permit may apply to the Tribunal for a review of a decision by a responsible authority to refuse to grant a permit.
Section 79 provides:
79. Applications for review of failures to grant permits
An applicant for a permit may apply to the Tribunal for review of the failure of the responsible authority to grant the permit within the prescribed time.
So far as relevant, s 80 provides:
80. Applications for review of conditions on permits
(1)An applicant for a permit may apply to the Tribunal for review of any condition in a permit which the responsible authority has issued or decided to grant to the person.
By virtue of s 83(1)(b), a determining referral authority is a party to a proceeding for review of a permit condition if the determining referral authority had required that the condition be included in the permit.
Section 84A provides:
84A. Parties not restricted to grounds previously notified
A party in a proceeding for review under this Act is not restricted at the hearing of the proceeding to any grounds previously notified to the other parties (whether in the course of or before the proceeding) or the Tribunal.
Notably, s 84AB provides:
84AB. Tribunal may confine review with agreement
The Tribunal may confine a review in respect of an application made under s 77, 78, 79, 80, 81, 82, 82AAA or 82B to particular matters in dispute if all the parties agree, and for this purpose s 84B applies as if the reference to an application for review were a reference to an application for review as so confined.
Section 84B provides:
84B. Matters for Tribunal to take into account
(1)In determining an application for review under this Act, the Tribunal must–
(a)take account of any matter which the person or body in respect of whose decision the application for review is made–
(i) properly took account of in making its decision; or
(ii)was required to take account of in making its decision; and
(b)have regard to any matter which the person or body in respect of whose decision the application for review is made–
(i) properly had regard to in making its decision; or
(ii) is required to have regard to in making its decision.
(2)In determining an application for review under this Act, in addition to the matters referred to in sub-section (1), the Tribunal–
(a) must take into account any relevant planning scheme;
(b) must have regard to the objectives of planning in Victoria.
So far as relevant, s 85 provides:
85. Determination of applications
(1) After hearing an application for review, the Tribunal may–
(a) direct that a permit must not be granted; or
(b)in the case of an application for review of a refusal or failure to grant or a decision to grant a permit–
(i)grant the permit and direct the responsible authority to issue it; or
(ii)grant the permit, direct that the permit must or must not contain any specified condition and direct the responsible authority to issue the permit; or
…
(e)direct that a permit must or must not contain any specified condition;
…
I turn now to Part 5 of the PEA. Part 5 provides, principally, for compensation for owners and (in some cases) occupiers of land (collectively, ‘landholders’) in respect of certain planning measures, in certain situations. I will refer to the most salient provisions of Part 5.
It is desirable to set out the whole of ss 98 and 99, to wit:
98. Right to compensation
(1)The owner or occupier of any land may claim compensation from the planning authority for financial loss suffered as the natural, direct and reasonable consequence of—
(a)subject to subsection (1A), the land being reserved for a public purpose under a planning scheme; or
(b)subject to subsection (1B), the land being shown as reserved for a public purpose in a proposed amendment to a planning scheme of which notice has been published in the Government Gazette under section 19; or
(c)a declaration of the Minister under section 113 that the land is proposed to be reserved for a public purpose; or
(d)access to the land being restricted by the closure of a road by a planning scheme.
(1A)Subsection (1)(a) only applies if the provision of the planning scheme that has been applied to and reserves the land expressly states as a purpose "to reserve land for a public purpose".
(1B)Subsection (1)(b) only applies if the provision of the planning scheme that is to be applied to and reserve the land (as a result of the proposed amendment) expressly states as a purpose "to reserve land for a public purpose".
(2)Subject to subsection (2A), the owner or occupier of any land may claim compensation from a responsible authority for financial loss suffered as the natural, direct and reasonable consequence of a refusal by the responsible authority to grant a permit to use or develop the land on the ground that the land is or will be needed for a public purpose.
(2A)Subsection (2) does not apply if the planning scheme prohibits or otherwise prevents the type of use or development that has been applied for in the permit application.
(3) A person cannot claim compensation under subsection (1) if—
(a)the planning authority has purchased or compulsorily acquired the land or part of the land; or
(b)a condition on the permit provides that compensation is not payable.
(4)The responsible authority must inform any person who asks it to do so of the person or body from whom the first-mentioned person may claim compensation under this Part.
(5) In subsection (1)—
"planning authority" means—
(a)in relation to a claim under subsection (1)(a), the planning authority that prepared the planning scheme or amendment that reserved the land for a public purpose; or
(b)in relation to a claim under subsection (1)(b), the planning authority that prepared the proposed amendment to the planning scheme that shows the land as being reserved for a public purpose; or
(c)in relation to a claim under subsection (1)(c), the Minister, public authority or municipal council specified in the declaration as responsible for the proposal; or
(d)in relation to a claim under subsection (1)(d), the planning authority that prepared the planning scheme or amendment that restricted access to the land by the closure of a road.
99. When does the right to compensation arise?
A right to compensation and the liability of a planning authority or responsible authority to pay compensation arises—
(a) under section 98(1)(a), (b) or (c) after—
(i)the responsible authority has refused to grant a permit for the use or development of the land on the ground that it is or may be required for a public purpose; or
(ii)the Tribunal directs that a permit must not be granted on the ground that the land is or may be required for a public purpose; or
(iii) the responsible authority—
(A)fails to grant a permit within the period prescribed for the purposes of section 79; or
(B)grants a permit subject to any condition which is not acceptable to the applicant—
and the Tribunal disallows any application for review of the failure or condition on the ground that the land is or may be required for a public purpose; or
(b)under section 98(1)(a), (b) or (c), on the sale of the land concerned under section 106; or
(c)under section 98(1)(d), on the coming into operation of the relevant provision of the planning scheme; or
(d) under section 98(2), on the refusal of the permit.
Section 100 provides that compensation payable under s 98 in respect of a residence may be increased (by up to 10%) for intangibles. Section 102 provides that, in determining compensation to be paid under Part 5, regard must be had to any amount previously paid in respect of the land by way of compensation. Section 103 deals with small claims. Section 104 provides that the maximum amount of compensation for financial loss payable under s 98 is the difference between the actual value of the land at the time when liability for compensation first arose and the value which the land would have had at that time in the absence of the relevant circumstance. Section 104A relates to the taking into account of the actual zoning of land in determining compensation. Section 105 provides:
105. Land Acquisition and Compensation Act 1986 to apply
Parts 10 and 11 and section 37 of the Land Acquisition and Compensation Act 1986, with any necessary changes, apply to the determination of compensation under this Part as if the claim were a claim under s 37 of that Act.
Section 106 of the PEA provides that, if certain conditions are met, an owner of land may claim compensation under s 98 after selling the land. Section 107 provides that a landholder may, in some circumstances, claim compensation for the removal or lapsing of a reservation. By virtue of s 108, a person does not have a claim for compensation if that person was not the owner or occupier of the relevant land when the right to compensation arose, or if the person acquired the land after the publication of notice of a proposed reservation.
So far as relevant, s 109 of the PEA provides:
109. When is compensation payable by other authorities
(1)Subject to subsection (1A), a Minister, public authority or municipal council is liable to pay any compensation payable under this Part which arises from the reservation or proposed reservation of land for public purposes if the Minister, public authority or municipal council had asked—
(a)the planning authority in writing to prepare a planning scheme or amendment to reserve the land for a public purpose.
(1A)If the planning scheme designates a Minister, public authority or municipal council as an acquiring authority for the purposes of this Act for land reserved for public purposes, the acquiring authority is liable to pay any compensation payable under this Part which arises from that reservation.
(2)A referral authority is liable to pay compensation under this Part which arises from a refusal to grant a permit if the responsible authority refused to grant the permit because the referral authority objected.
(3)The claimant must claim the compensation from the Minister, the public authority, the relevant municipal council or the referral authority instead of the planning authority.
(4)Despite anything to the contrary in any Act, a public authority or municipal council may pay out of its funds any amount it is required to pay because of this section.
Part 5 of the PEA also contains various additional provisions to prevent windfalls, double dipping and the like. Thus there are provisions for the recording on title of amounts of compensation paid (s 110); for the recovery of compensation previously paid where a reservation is discontinued (s 111); and for the reimbursement of compensation to a person or authority where another person or authority acquires the land or is designated as the acquiring authority (s 112).
Mr Kilpatrick applies to the Council for planning permits
In October 2020, with a view to making a subsequent claim against HTV for financial compensation for loss attributable to PAO5, Mr Kilpatrick applied to the Council for planning permits to construct four substantial dwellings, one on each of the four abovementioned titles within his farm property. The evidence before this Court does not disclose whether any estimate was given to the Council of the prospective building costs of the dwellings. However, as indicated above, s 47 of the PEA required that this be done; and in Mr Kilpatrick’s later VCAT applications (as lodged), he estimated the prospective building costs at $775,000 per dwelling.[84] Each dwelling was proposed to be sited on a part of the relevant title situated squarely within the strip of land reserved for the Transport Corridor. Although the permit applications were professionally prepared, and contained appropriate detail,[85] Mr Kilpatrick did not actually want to have the dwellings built at all. Rather, as mentioned above, Mr Kilpatrick was following a test or token permit application process of the kind that he himself and other Victorian landholders seeking compensation for claimed ‘planning blight’ had followed previously, where the purpose of the permit application is to seek to enliven a right to compensation under ss 98 and 99 of the PEA.[86] Indeed, I am satisfied that a practice of this kind has been followed in Victoria, without objection by the relevant authorities, for over 30 years.[87] HTV conceded at the VCAT hearing that such a process is valid, legitimate and available to landholders in Victoria.[88] On the other hand, as I will further mention in due course, HTV has said some inconsistent things in this regard in the present proceeding in this Court, albeit while expressly declining to seek leave to further amend its amended notice of appeal so as to include a corresponding proposed ground of appeal.
[84]See the relevant entries in Mr Kilpatrick’s applications to VCAT for review, at CB 222, 236, 249 and 263. These estimates were not challenged at VCAT. Nor are they challenged now.
[85]The evidence before this Court does not include the original applications for permits, but the inference that the permit applications were properly prepared and contained appropriate detail is supported by the fact that Wyndham City Council ultimately granted the permits for which Mr Kilpatrick had applied, subject to certain conditions (see further below), and by the tenor of the permit documents themselves: see CB 17–58. The inference is further supported by the terms of the written submissions to VCAT filed by Wyndham City Council: see CB 73–79. There was no suggestion to the contrary at VCAT or in this proceeding.
[86]See above for the full terms of ss 98 and 99 of the PEA.
[87]See Day (n 4) 213, 214, 215, 216, 218, 219, 223 and 224 (especially at 223) (JD Phillips J) and see [8] above of this judgment. See also the submissions made on behalf of Mr Kilpatrick at VCAT (mentioned below). See, in addition, the concessions, about to be mentioned, made by HTV at VCAT, both during and after the oral hearing. But compare what senior counsel for HTV said in this regard at the hearing before this Court (see above and below).
[88]Transcript of Proceedings, Kilpatrick v Wyndham CC (Victorian Civil and Administrative Tribunal, P937/2021, P948/2021, P949/2021 & P951/2021, SM Martin, 1 February 2022) 24–26, 29–33, CB 299–301, 304–308 (‘VCAT transcript’); HTV’s undated written post-hearing submissions to VCAT [27], [34] (‘HTV’s post-hearing VCAT submissions’). See further below.
In relation to HTV’s proposed ground 1, Mr Boston KC made the following additional points:
(a) that, by virtue of s 35 of the Interpretation of Legislation Act 1984, a purposive interpretation of the PEA is necessary;[842]
[842]SCV 24 July transcript (n 7) 5–6.
(b) that the presently relevant purposes of the PEA are principally those indicated by ss 1 and 4 thereof – including, in particular, s 4(2)(l), which provides that an objective of the planning framework established by the PEA is ‘to provide for compensation when land is set aside for public purposes and in other circumstances’;[843]
[843]Ibid 7–8. See [48] above of this judgment.
(c) that, accordingly, the Court should be slow to read down the provisions of ss 98 and 99 relating to compensation;[844]
[844]Ibid 8–9.
(d) that the word ‘disallows’ in s 99(a)(iii) of the PEA conveys the idea of declining to intervene in what occurred below or the idea of dismissing an application for review;[845]
[845]Ibid 11, citing Day (n 4) 230 and Rumpf (n 74) [129]. See also [427] above of this judgment.
(e) that the most relevant of the express powers of VCAT in this matter were those conferred by s 85(1)(e) of the PEA and ss 51(2)(d) and 130 of the VCAT Act;[846]
[846]Ibid 11–12. For the provisions of the PEA cited, see [16], [72] and [83] above of this judgment.
(f) that in order for VCAT’s express powers to be given proper effect, an implied power to disallow an application for review must exist;[847]
[847]Ibid 13–15.
(g) that to discern such an implied power accords with well-established legal principles and case law;[848]
[848]Ibid 15–17, citing JKL v Justice Health and Forensic Mental Health Network (2021) 104 NSWLR 592 at [2], [5] and [49]–[57] and cases there cited.
(h) that it is also implicit in the review process established by the PEA (in combination with the VCAT Act) that VCAT must have a power to disallow an application for review of a planning condition;[849]
(i) that, even if VCAT did not, in the present case, correctly or comprehensively identify the relevant source or sources of its power to make an order of the kind that it made, nevertheless the abovementioned ‘alternative source of statutory power principle’ would apply;[850]
(j) that nothing in Rumpf assists HTV – Rumpf related to an objector’s application under s 82 of the PEA, not an application by a permit holder under s 80 seeking an order for disallowance as described in s 99 of the PEA. In Rumpf, Balmford J could not have meant that a disallowance order as so described could never be made.[851]
[849]Ibid 18–19, citing Day (n 4) 231. See also [431] above of this judgment.
[850]Ibid 20–26, citing VAW (Kurri Kurri) Pty Ltd v Scientific Committee (2003) 58 NSWLR 631 at [5], [12]–[36], [42], [43], [50] and [55] and cases there cited. For other references to this principle, including more recent High Court authority, see [11] and [21] above of this judgment.
[851]Ibid 27–28.
Next, Mr Boston KC dealt with HTV’s proposed grounds 2(a) and (b), together. He made the following points:[852]
[852]Ibid 29–38.
(a) that HTV’s allegation in proposed ground 2(a) (namely, that VCAT ‘failed to engage with the provisions of s 84B of the [PEA]’) was only ever particularised as an allegation that VCAT failed to take into account the new position adopted by HTV at VCAT;
(b) that that particular was, in effect, the same as the substantive allegation set out in proposed ground 2(b);
(c) that the allegation was misconceived, because the new position of HTV was not something covered by s 84B of the PEA at all. HTV’s new position post-dated anything that could be picked up by s 84B;[853]
[853]See and compare [263(a) and (b)], [266], [270] and [284] above of this judgment.
(d) that, as Mr Goubran KC had seemed to concede,[854] VCAT’s comment that HTV’s new position was ‘irrelevant’ meant only that it was irrelevant to the matter of whether the conditions in question were ‘not acceptable’ to Mr Kilpatrick within the meaning of s 99(a)(iii)(B);[855]
[854]See [284] above of this judgment and the footnotes thereto.
[855]See and compare [270], [277] and [284] above of this judgment.
(e) that, in any event, VCAT plainly did consider the new position of HTV;[856]
[856]See and compare [270], [276], [278] and [284] above of this judgment.
(f) that HTV’s allegation that VCAT failed to exercise its powers under s 85 of the PEA is really a repetition of HTV’s proposed ground 1 and is wrong for all the reasons already referred to in relation to that proposed ground;
(g) that VCAT was under no obligation to refer expressly to s 85 in its order or reasons;
(h) that the matter before VCAT was really a one issue case;
(i) that HTV led no evidence at VCAT;
(j) that Mr Vorchheimer specifically told VCAT that ‘obviously, clearly what we’re dealing with here is a very limited review, being a review of conditions. We don’t open everything else up’;[857]
(k) that there was ample evidentiary material before VCAT to establish that the houses would have to be demolished if the road and railway were built. VCAT had made strong findings of fact accordingly;
(l) that, in any event, HTV has not pleaded any permissible kind of challenge to VCAT’s findings of fact on that matter.
[857]VCAT transcript (n 88) 21–22 CB 296–297.
As to HTV’s proposed ground 2(c), Mr Boston KC submitted that there was absolutely no basis for the contention that VCAT should have arrived at a conclusion opposite to the conclusion at which it did arrive. It was well open to VCAT to conclude, as (in effect) it did, that the planning conditions in question should be maintained. VCAT was under no obligation to accept the position advanced by HTV. The cases relied upon by HTV in this regard, namely Ungar v City of Malvern,[858] The Sisters Wind Farm Pty Ltd v Moyne Shire Council[859] and Friends of the Surry Inc v Minister for Planning,[860] had no application in the present case.[861]
[858][1979] VR 259.
[859](2012) 193 LGERA 126.
[860][2013] VCAT 157.
[861]Mr Boston KC was plainly correct in this regard: see [268]–[271] above of this judgment.
In relation to proposed ground 3(a), Mr Boston KC submitted:
(a) that Mr Goubran KC had never clearly or properly identified the so-called ‘anterior, and necessary, finding’ that VCAT allegedly omitted to make, nor the ‘anterior step’ that VCAT allegedly failed to take;[862]
(b) that, if HTV’s intended allegation is that VCAT failed to stand in the shoes of the council in that VCAT allegedly failed to determine whether the conditions contained in the permit should be removed or not, then (putting aside the question whether VCAT was legally obliged to stand in the shoes of the council in that respect) the allegation must fail on the facts. VCAT did effectively stand in the shoes of the council in this regard. It made findings of fact that led it to a conclusion that HTV’s position on the conditions was nonsensical and farcical;[863]
(c) that any error by VCAT in perceiving, or spelling out, the statutory pathway to its conclusion was legally immaterial because there is no realistic possibility that the outcome of the matter might have been different had any such error not been made.[864]
[862]SCV 24 July transcript (n 7) 41–42.
[863]Ibid 42.
[864]Ibid 42–51, citing MZAPC (n 42).
In relation to proposed ground 3(b), Mr Boston KC submitted:
(a) that the mere fact that HTV did not ‘require’ the permit conditions to remain was by no means conclusive;[865]
[865]Ibid 51–61.
(b) that the question whether the land ‘is or may be required for a public purpose’ within the meaning of s 99(a)(iii)(B) was an objective question. It did not depend on the subjective opinion of the referral authority;[866]
(c) that that must be so because of the words ‘may be’ – it will always be an objective question as to whether the land ‘may be’ required (at some relevant time) for a public purpose;[867]
(d) that, on the evidentiary material before VCAT, it was entirely open to VCAT to conclude that the land ‘is or may be required for a public purpose’, namely the very purpose for which the land was reserved (the Transport Corridor).
[866]Ibid 52–55.
[867]Ibid 53–54.
As to proposed ground 3(c), Mr Boston KC submitted that, contrary to HTV’s case, it was well open to VCAT to conclude that the permit conditions in question were ‘not acceptable’ to Mr Kilpatrick, because–
(a) this was a matter for Mr Kilpatrick, not for anyone else;
(b) Mr Kilpatrick’s reasons for finding the conditions ‘not acceptable’ did not matter – they could validly be, or include, compensation-related reasons;[868]
[868]Ibid 61–62.
(c) in any event, HTV had conceded this point at VCAT;[869]
(d) therefore, it was too late for HTV to raise this point now;
(e) HTV’s purported reliance on the propositions that Mr Kilpatrick did not seek to have the permit conditions removed from the permit and that he sought to have the applications for review disallowed, runs contrary to HTV’s (proper) concession (both at VCAT and in this Court) that test or token applications are legitimate.[870]
[869]Ibid 62–63, referring to VCAT transcript (n 88) 19 CB 294. See also [291] above of this judgment.
[870]Ibid 63–65.
As to proposed ground 3(d), Mr Boston KC submitted that whether HTV’s lack of clean hands (as found) was relevant or irrelevant was a factual matter and not a proper basis for a point of law.[871] He further submitted that, in any event, the finding of lack of clean hands was not irrelevant at all. It was certainly not a consideration that VCAT was forbidden by law from taking into account.[872]
[871]Ibid 65.
[872]Ibid 65–67. See also [293] above of this judgment. And see M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (Lawbook Co., 7th ed, 2022) [6.90] (‘Aronson, Groves and Weeks’) and cases there cited.
At the time, it seemed to me that, subject to any responses that Mr Goubran KC might make, the submissions of Mr Boston KC (as summarised above) were soundly based and persuasive. In fact, as I will further indicate in due course, Mr Goubran KC put forward little or nothing by way of response to the points made by Mr Boston KC. I now fully accept Mr Boston KC’s submissions as summarised above. That alone would dispose of each and every one of HTV’s proposed grounds, sub-grounds and particulars of appeal in its notice of appeal. However, for completeness, I will proceed next to identify the other matters which, as mentioned above,[873] had been reserved or flagged for the future attention of Mr Goubran KC.
[873]See [315]–[317] above of this judgment.
Matters apparently left for Mr Goubran KC to deal with in his oral reply
As indicated above, some six weeks passed between the first two hearing days and the third hearing day. That gave Mr Goubran KC plenty of time to formulate submissions on matters to which, during the first two hearing days, he had vowed to return or been invited to return. During the course of Mr Boston KC’s address on the third day, two additional matters were specifically flagged as matters that Mr Goubran KC might wish to deal with.
The upshot was that, in addition to any response that Mr Goubran KC might make to Mr Boston KC’s address, the following matters had been put aside for the attention of Mr Goubran KC:
(a) what VCAT actually found, and what VCAT was entitled to find, as to the location of the proposed dwellings in relation to the route and the width of the Transport Corridor;[874]
[874]SCV 9 and 13 June transcript (n 7) 108–109, 270.
(b) whether VCAT was entitled to draw adverse inferences about the genuineness of HTV’s fluctuating positions on the planning conditions, i.e. about whether HTV had ‘clean hands’;[875]
[875]Ibid 116–118. See [335]–[336] above of this judgment.
(c) whether HTV ever gave VCAT a coherent answer to the question of how a landholder might seek to take advantage of s 99(a)(iii)(B) of the PEA if, as HTV contended, Mr Kilpatrick was not entitled to do so in the present case;[876]
[876]Ibid 171.
(d) whether there were any specific planning considerations that VCAT wrongly omitted to consider or take into account in this case;[877]
(e) the relevance, if any, of s 84AB of the PEA;[878]
(f) the meaning of ‘required’ in s 99 of the PEA.[879]
[877]Ibid 184–185.
[878]SCV 24 July transcript (n 7) 31–33.
[879]Ibid 55.
The matters referred to sub-paragraphs (e) and (f) of the previous paragraph were the two additional matters raised on the third hearing day. If Mr Goubran KC needed additional time to consider those matters, he could have asked for it. There was still a day and a half of allocated hearing time available. Likewise, if Mr Goubran KC had needed any further time to deal with any of the points that Mr Boston KC had raised, he could have sought such time.
Mr Goubran KC’s oral reply: a parting shot on materiality, but little else
In the circumstances just described, I asked Mr Goubran KC whether he was happy to begin straight away. Contrary to my expectations, Mr Goubran KC replied:[880]
Yes, because I don’t propose to say anything in reply. I do not propose to say anything in reply other than to note we’ve searched the other side’s written submissions and we haven’t seen any reference to materiality in them.
We stand corrected about it, but we haven’t seen any reference to it. As to the consequence of that the Authority is happy to allow your Honour to decide that question as put before you and we’ll deal with the consequence that flow from that. But as to the question of reply I do not have anything to say further.
[880]Ibid 67–68.
I then observed that there were a few matters which, on previous occasions and on that same day, I had invited Mr Goubran KC to think about. Mr Goubran KC responded that he had nothing to say about the matters that had been raised on that day. As to matters that had been raised on previous days, Mr Goubran KC said that, on reading the transcript, his side had identified two such matters, namely, first, details of the reservation itself, its width, the transport project, the timeframes and things of that kind; and, second, whether the dwellings would be compatible with the reservation. All of this was really a single matter. Mr Goubran KC then observed, in effect, that Mr Boston KC had already covered most of that territory. However, Mr Goubran KC proceeded to take me through some of the abovementioned documents that had been before VCAT. His aim in doing so appeared to be to persuade me that there had not been a strong foundation for the submissions made by Mr Morris QC to VCAT about incompatibility, or for any finding of incompatibility that VCAT may have made. (HTV does not admit that VCAT actually arrived at a finding of incompatibility). However, there is no proposed ground of appeal to which Mr Goubran KC’s submissions in this regard might have been relevant. In any event, I was not persuaded at the time, and I remain unpersuaded. As VCAT’s reasons show, VCAT did find incompatibility as between the proposal for the dwellings and the reservation for the Transport Corridor. In my view, it was entirely open to VCAT to do so.[881]
[881]See [143], [180]–[182], [189]–[191] and [194] above of this judgment.
Otherwise, Mr Goubran KC did not address anything that Mr Boston KC had said or any of the matters listed under the previous heading.
Nevertheless, I should return to the words used by Mr Goubran KC about materiality immediately after I invited him to reply. Those words are quoted above.[882]
[882]See [458] above of this judgment.
Though cryptic, Mr Goubran KC’s comments about materiality seemed to involve the following express or implied elements:
(a) that Mr Kilpatrick’s written submissions did not refer to materiality;
(b) that, therefore, the Court should not deal with materiality;
(c) that, nevertheless, HTV is ‘happy’ to ‘allow’ the Court to decide the question of materiality;
(d) that HTV would ‘deal with’ the ‘consequences’ that flow from ‘that’.
As to point (a), it is true that in Mr Kilpatrick’s single set of relatively brief written submissions (dated 23 February 2023) the word ‘materiality’ does not appear. Nor is the corresponding principle of administrative law expressly mentioned. However, that principle is trite law.[883] Further, Mr Kilpatrick’s written submissions included certain parts that clearly raised, at least in my mind, the question of materiality.
[883]See [21] above of this judgment. And see Nekvapil (n 5) [VCAT 148.480] and the many cases there cited.
Thus, in dealing with proposed ground 1 and with HTV’s contention that VCAT asked itself the wrong question, Mr Kilpatrick’s written submissions included the following passage (my emphasis):[884]
It is clear that, regardless of the phrasing of the question, the Tribunal considered whether it had jurisdiction to make the subject orders. It analysed the language of section 99 at paragraphs [36] to [39], and considered authorities in relation to the issue of jurisdiction at paragraphs [58] to [68].
[884]Mr Kilpatrick’s written submissions (n 378) [15].
Likewise, in dealing with HTV’s contention that VCAT purported to exercise original jurisdiction, Mr Kilpatrick’s written submissions included this:[885]
The Tribunal did not say whether it was exercising original or review jurisdiction. It is clear from its reasons that it assessed whether the applications for review of the conditions should be disallowed. In that respect, it was exercising a review jurisdiction.
[885]Ibid [17].
In dealing with proposed ground 2 and with HTV’s complaint that VCAT did not address the considerations set out in s 84B of the PEA, Mr Kilpatrick contended in his written submissions that it was clear that VCAT had had regard to HTV’s position on the conditions in question.[886] HTV had not, and still has not, accused VCAT of failing to take into account any other consideration said to be covered by s 84B.
[886]Ibid [23].
In dealing with proposed ground 3 and with HTV’s contention that VCAT did not carry out a de novo review, Mr Kilpatrick contended in his written submissions, giving particulars,[887] that VCAT did in fact consider the merits and the effect of the conditions in question to the extent warranted.[888]
[887]Ibid [31].
[888]Ibid [32].
The materiality point jumped out of the pages of Mr Kilpatrick’s written submissions in another way, too. In those submissions, HTV’s case in this Court had been criticised by reference to VCAT’s strongly expressed findings of fact. Thus Mr Kilpatrick mentioned[889] VCAT’s finding that HTV had ‘no credible case’ that a dwelling could be built on each of the four intended locations and yet co-exist with the Outer Ring Road when built.[890] Indeed (as Mr Boston KC later emphasised) VCAT had said that, if, as Mr Morris QC had submitted, the proposed houses were sited within the alignment of the north bound lane of the freeway, then HTV’s suggestion was ‘farcical’.[891] I note also that VCAT’s finding that HTV lacked ‘clean hands’ was a most striking finding, and one that Mr Kilpatrick had referred to in his written submissions.[892]
[889]Ibid [31(b)].
[890]Kilpatrick v Wyndham (n 1) [53].
[891]Ibid [56].
[892]Mr Kilpatrick’s written submissions (n 378) [41]–[43].
By reason of Mr Kilpatrick’s written submissions, HTV should have anticipated, even before the oral hearing began, that it would have to confront the well-known administrative law principle of materiality. Indeed, HTV should have anticipated that, by reason of what was said in VCAT’s reasons, in combination with Mr Kilpatrick’s submissions, HTV’s whole case might appear to this Court to have little merit or substance.
That brings me to point (b). It follows from the above that it was proper, and indeed only fair to HTV, for the Court to give Mr Goubran KC an opportunity to deal with the issue of materiality where it appeared to arise. Consistently with that view, Mr Goubran KC expressed no surprise, and made no complaint, when, on several occasions during days one and two, I provided him with opportunities of that kind. Thus on the first morning of the hearing, Mr Goubran KC was alleging that VCAT had erred in law by failing to appreciate that the only jurisdiction available to it (in Mr Kilpatrick’s matters) was review jurisdiction. I put to him that, even if that were so, he would need to show that this was a material error.[893] Mr Goubran KC seemed to accept this with equanimity; and he submitted that the alleged error was indeed a material one.[894] A little later, I put to Mr Goubran KC that he would need to show that any alleged error of law on which he relied was a ‘material’ or ‘vitiating’ error.[895] Again, Mr Goubran KC appeared to accept this readily enough.[896]
[893]SCV 9 and 13 June transcript (n 7) 11.
[894]Ibid.
[895]Ibid 29–31.
[896]Ibid.
A bit later,[897] on the first hearing day, when Mr Goubran KC was asserting that VCAT had wrongly treated s 99(a)(iii)(b) as an applicable source of jurisdiction or power, I referred him to the abovementioned principle of public law that an administrative decision may be valid notwithstanding a mistake by the administrator in identifying the source of his or her power, being a principle related to the principle of materiality.[898] Mr Goubran KC did not express any surprise or concern about this.
[897]SCV 9 and 13 June transcript (n 7) 133.
[898]See [11], [21] and [447(i)] above of this judgment.
On the second hearing day, I referred again to the materiality requirement, and, again, Goubran KC expressed no surprise or concern.[899]
[899]SCV 9 and 13 June transcript (n 7) 203.
As mentioned above, there was then a gap of about six weeks until the third hearing day. This gave both sides plenty of time to regroup and to consider and deal with anything that might previously have taken them by surprise.
On the third hearing day, as mentioned above,[900] Mr Boston KC expressly relied on the abovementioned principle that a mistake by an administrator as to the source of his or her power does not necessarily invalidate the decision;[901] and he also advanced submissions[902] relying on the general materiality principle, citing in particular MZAPC.[903] With a further 1½ hearing days remaining, Mr Goubran KC had every opportunity to respond, in his reply, to these matters.
[900]See [447(i)] above of this judgment.
[901]SCV 24 July transcript (n 7) 20–25.
[902]Ibid 42–44, 50–51.
[903]MZAPC (n 42).
Even if Mr Kilpatrick’s legal representatives had not expressly relied on these matters at any stage, nevertheless it would have been incumbent on this Court to satisfy itself that any error of law that VCAT may have made was a material error.[904]
[904]See [30] above of this judgment.
Hence, in my view, in all the circumstances, it was appropriate for the Court to raise with Mr Goubran KC, during his principal address, the possible application of the principle of materiality and also the related principle concerning mistakes about the true source of an administrator’s power. Indeed, HTV might have had cause to complain if the Court had not done so.
Turning to points (c) and (d) above, I can only say that the particular remarks made by Mr Goubran KC were not helpful to the proper determination of the present dispute and reflected an unduly elevated sense of entitlement and power on the part of HTV, corresponding with many of HTV’s actions and contentions over the course of this matter, as detailed above.[905]
[905]Compare Civil Procedure Act 2010 (Vic) ss 5, 7, 10-15, 16, 18 and 23; Victorian Government, Victorian Model Litigant Guidelines (2nd ed, 2011) [1], [2], [4], [7], [8] and [11].
Conclusions and orders
For all of the reasons set out above, HTV has not satisfied me that VCAT erred in law in any of the ways alleged by HTV. Indeed, I am positively satisfied that VCAT did not so err.
If, contrary to my view, VCAT did make an error of law of a kind alleged by HTV, nevertheless HTV has not satisfied me that any such error was legally material. I am not satisfied that there is any realistic possibility that the outcome of the case would have been different in substance had such error not occurred.
Noting that leave to appeal is to be given, I do not express any view as to whether, had HTV satisfied me that VCAT made a material error of law, the Court might nevertheless have exercised its residual discretion against HTV because of its lack of good faith in dealing with Mr Kilpatrick’s matter (as found by VCAT), or because of HTV’s abovementioned attempts to depart from the case it ran at VCAT or because of the other unsatisfactory features, referred to above, of HTV’s conduct of its case in this Court.[906]
[906]See and compare [13] and [33] above of this judgment. See also and compare R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389, 400 (Latham CJ, Rich, Dixon, McTiernan and Webb JJ); and see generally Aronson, Groves and Weeks (n 872) 12.4.
Leave to appeal will be granted, but the appeal will be dismissed.
Costs
My provisional view is that HTV should be ordered to pay Mr Kilpatrick’s costs of the proceeding (including any reserved costs), to be taxed on the standard basis in default of agreement. I will make a provisional order to that effect. However, I will reserve liberty to the parties to apply for some further or different order as to costs, provided that any proposal to make such an application be notified to the Court in writing by 4pm on 18 November 2024.
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