Iuele v Francis
[2013] VSC 637
•20 November 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION & PLANNING LIST
No. S CI 2013 3200
| PAOLO FRENCESCO IUELE & ORS | Applicants |
| v | |
| GRAHAM STANLEY FRANCIS & ORS | Respondents |
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JUDGE: | EMERTON J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 October 2013 | |
DATE OF JUDGMENT: | 20 November 2013 | |
CASE MAY BE CITED AS: | Iuele & Ors v Francis & Ors | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 637 | |
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PLANNING AND ENVIRONMENT – Application for leave to appeal against the Order of the Victorian Civil and Administrative Tribunal pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) – Tribunal refused to grant a permit to use and develop land for the purposes of a farmers’ market – Whether there was a denial of procedural fairness as a result of observations made in the Tribunal’s reasons for decision about the enforceability of proposed conditions – Whether the Tribunal misconstrued the enforcement framework of the Planning and Environment Act 1987 (Vic) - Whether the Tribunal took into account an irrelevant consideration – Whether the Tribunal erred in law in misconstruing the policy objectives in the Melton Planning Scheme – Leave to appeal refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicants | Mr M Belmar | Hutchinson Legal |
| For the Respondents | No appearances |
HER HONOUR:
Introduction
The applicants seek leave to appeal pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act1998 (Vic) from the order of the Victorian Civil and Administrative Tribunal made on 24 May 2013 by which the Tribunal set aside the decision of the Melton City Council to grant a permit for the use and development of part of the applicants’ land for a farmers’ market and refused a permit.[1]
[1]For reasons of convenience, the appeal was heard at the same time as the application for leave to appeal. However, none of the other parties to the Tribunal proceeding appeared to make submissions on the merits of the application for leave or in the proposed appeal and the Court did not have the benefit of hearing from a contradictor.
For the reasons that follow, leave to appeal is refused.
Background
The applicants proposed to develop a weekend farmers’ market on rural land owned by them near the township of Melton. The review site is in a Green Wedge Zone and is currently used for the purpose of Christmas tree sales. The proposal involves the establishment of 58 market stalls in large and small sheds, as well as 22 car boot sites. The proposal was described in the permit application as providing opportunities to sell locally harvested produce, as well as arts and crafts.
Although the Council granted a permit for the use and development of the land as a farmers’ market, the Tribunal refused a permit because it was not persuaded that the proposal represented an acceptable planning outcome. Even though some of the impacts of the proposal were acceptable or could be managed, the Tribunal was not satisfied that the review site was an acceptable location for the proposed use. Furthermore, it found that important elements of the proposal were uncertain and were not supported by information to give the Tribunal confidence that the contended for social and economic benefits would be likely to be achieved. Having balanced the positive, neutral and negative outcomes and impacts of the proposal, the Tribunal stated that it had not been persuaded that a net community benefit would result from the proposed use and development.[2]
[2]Francis v Melton CC [2013] VCAT 838 (‘Reasons’) [60] and [61].
Grounds of appeal
The applicants have identified questions of law and raised grounds of appeal based, essentially, on two paragraphs in the Tribunal’s reasons for decision:
(a)paragraph 22, in which the Tribunal stated that questions remained as to whether the proposal was a farmers’ market or whether it was more properly described as a market, and that if the use was to be confined to what was commonly understood to be a farmers’ market through permit conditions, the required conditions might be difficult to enforce; and
(b)paragraph 32, in which the Tribunal set out, in bullet points, the reasons why the proposed use was not acceptable in the location. There are two aspects to the applicants’ complaints about paragraph 32: first, the Tribunal’s reference to the Melton Tourist Precinct Development Plan and the type of information required by that Plan; and, secondly, its emphasis on the loss of productive farming land and under-emphasis on the economic and social benefits resulting from the proposal.
In this context, the questions of law sought to be agitated on appeal have been identified as follows:
(1)Did the Tribunal misconstrue clause 22.08 of the Melton Planning Scheme?
(2)Did the Tribunal misconstrue the enforcement framework of the Planning and Environment Act1987 (Vic) (the ‘PE Act’)?
(3)Did the Tribunal take into account an irrelevant consideration in the form of the Melton Tourist Precinct Development Plan, which did not apply to the application before the Tribunal?
(4)Did the Tribunal accord the applicants a fair hearing in relation to the enforceability of permit conditions?
Questions (2) and (4): the nature of the proposal and enforcement of conditions
The applicants submit that the Tribunal misconstrued the enforcement framework in the PE Act and that it failed to give the applicants a fair hearing in relation to the issue of the enforceability of proposed permit conditions. They submit that by determining that a permit condition may be difficult to enforce, the Tribunal went beyond the matters properly to be considered pursuant to s 60 of the PE Act and clause 65 of the Melton Planning Scheme and ‘misconstrued’ its discretion. The applicants submit that the enforcement of permit conditions is a matter that is addressed by a separate statutory process pursuant to the PE Act and, when undertaking an assessment of the planning merits of a permit application, the Tribunal should presume that permit conditions will be obeyed.[3]
[3]In this respect, the applicants refer to a series of cases in which the Tribunal considered the question of the enforceability of permit conditions and whether that should be a relevant matter in determining whether or not a permit should issue: Glouftsis v Greater Geelong CC [2010] VCAT 477.
The applicants further allege that they did not receive a fair hearing in relation to the nature of the proposal and whether permit conditions securing the character of the market as a ‘farmers’ market’ could be enforced. They say that it is evident from the transcript of the Tribunal hearing that the types of goods to be sold at the proposed farmers’ market was an important issue and that the applicants made clear their intention to agree to a condition that would preclude ‘trash and treasure’ from being sold at the market.[4] Nonetheless, the Tribunal stated in the Reasons that ‘questions’ remained as to whether the proposal was truly a farmers’ market. The applicants submit that if questions remained about the true nature of the proposal, the Tribunal should have directed the applicants to those concerns and given them an opportunity to respond to them.
[4]They concede that their expert town planning witness, Mr Barber, gave evidence that the site could be used to sell items similar to those sold in a garage sale, and that that was his understanding of what the car boot sales would be used for. However, the applicants’ advocate, in further submissions, told the Tribunal that her clients were prepared to have car boot sales restricted to produce and crafts as a condition.
Grounds (2) and (4) are based on statements in paragraph 22 of the Reasons. It is important to read paragraph 22 in context. In the preceding paragraphs, the Tribunal recorded the objectors’ submission that no restrictions on the types of goods to be sold were proposed, that the goods would not be confined to produce and that the proposal had the potential to be a ‘trash and treasure’ market. The Tribunal considered definitions of farmers’ markets used by both the Australian and Victorian Farmers’ Markets Associations, and in the report of the Victorian Parliamentary Inquiry into Farmers’ Markets.[5] Based on these definitions or understandings of what constitutes a farmers’ market, the Tribunal found that the likelihood that producers and stallholders might come from a wider district than the local area was not fatal to the proposal[6] and the fact that the market would be on private land and not organised by a community group or organisation, or by the Council, did not cause it to be something other than a farmers’ market. Similarly, it found that the fact that the permit applicant was to be the manager of the proposed market, with sources of external advice and assistance detailed in an ‘events management strategy’, did not mean the proposal was not a farmers’ market. The Tribunal then said as follows:
Despite the above findings, questions remain as to whether the proposal is a farmers’ market or whether it is broader and more properly described as a “market”. In this regard, Ms Wilson [the advocate for the applicants] emphasised that the proposal is for a farmers’ market; no application has been made for trash and treasure, which is a use that is listed in the Clause 74 definitions. She also referred to the potential to limit the sale of goods by a permit condition that, for example, requires no sale of second-hand goods or trash and treasure. I have taken these submissions into account and proceeded on the basis that the proposed use is a farmers’ market, as sought by the amended application. Conditions may be used to limit the sale of other products. Having said that, if the use is to be confined to what is commonly understood to be a farmers’ market through permit conditions, I think the required conditions may be difficult to enforce (such as the sale of second-hand items).[7]
[5]Inquiry into Farmers’ Markets, Outer Suburban/Interface Services and Development Committee of the Victorian Parliament (October 2010).
[6]Reasons [19].
[7]Ibid [22].
The Tribunal then went on to consider whether the proposed use was acceptable in the location.
I am not persuaded that the Tribunal erred in law in stating that questions remained as to whether the proposal was a farmers’ market and that conditions confining the proposal to what is commonly understood to be a farmers’ market might be difficult to enforce. Nor am I persuaded that the Tribunal denied the applicants procedural fairness in making these statements.
The first and most obvious point to be made is that the Tribunal proceeded to determine the permit application on the basis that the proposed use was a farmers’ market. It accepted the applicants’ submissions in this regard.
Furthermore, the statement that ‘questions’ remained followed the findings made in the previous paragraphs. Questions remained ‘despite the above findings’ that is, the findings in paragraphs 19, 20 and 21. The Tribunal then referred to the submissions made by the applicants’ advocate, Ms Wilson, recorded that it had taken these submissions into account and stated that it would proceed on the basis that the proposed use was a farmer’s market. It is open to infer that no questions remained following Ms Wilson’s submissions.
In any event, and most importantly, the Tribunal did not refuse to grant a permit because it had any doubts about whether the proposal was for a farmers’ market or because it was not satisfied that conditions could be imposed to confine the proposal to a farmers’ market. The Tribunal’s decision did not turn on whether questions remained about the character of the market or on whether permit conditions would be enforceable. The Tribunal refused to grant a permit because of the matters set out in paragraph 32 of the Reasons, none of which is related to whether the proposal was for a farmers’ market or ‘trash and treasure’ market, or to whether permit conditions would be effective to ensure that the proposal operated as a farmers’ market and not as a trash and treasure market.
The Tribunal found that the proposed location was not appropriate for a farmers’ market and refused the permit on that basis. The reasons for that finding set out in paragraph 32 relate to the loss of productive land for farming; to the fact that the use would stand alone in the location with few physical advantages or attributes, poor public transport access and where it could not offer flow-on benefits to other businesses; to the fact that the site was close to but separated from a designated tourist precinct that was both within the Urban Growth Boundary (‘UGB’) and in a Special Use Zone; and to the fact that the proposal had the potential to cause pressure for retail/tourism-based uses outside the identified precinct and the UGB, as well to undermine the ability to achieve a successful tourist precinct in the designated area. Furthermore, the Tribunal found that social and economic benefits for local producers and the community contended for had not been demonstrated or substantiated, and that there was no information about or documentary support for the feasibility of the proposal or spinoffs to generate confidence that the proposed use would achieve the positive outcomes contended for. Specifically, there was a failure to demonstrate how the proposal would positively advance the purpose of the Green Wedge Zone, State and local policy with respect to tourism and other outcomes.[8] Generally, the Tribunal found that the components of the proposal were not fully resolved.[9]
[8]Ibid [32].
[9]Ibid [32] and [11].
None of this had anything to do with whether the proposal was really a proposal for a farmers’ market or whether a permit condition as to what could or could not be sold at the market would be difficult to enforce.
As the matters complained of did not cause or contribute to the decision to refuse the permit, any error will not be a vitiating error. In my view, grounds (2) and (4) do not identify vitiating error, whether described as a misconstruction of the enforcement framework in the PE Act or as a denial of procedural fairness.
Much time was spent in argument on the allegation that the applicants did not receive a fair hearing, and it is appropriate to say a little more about this aspect.
Counsel for the applicants submitted that the Tribunal denied the applicants a fair hearing because it failed to ‘put’ to the applicants’ advocate, Ms Wilson, that it had a concern about whether the proposal was for a farmers’ market and whether a permit condition could be enforced. According to counsel, the Tribunal should have asked Ms Wilson how it should treat Mr Barber’s evidence and it was incumbent upon the Tribunal ‘to have it out’[10] with Ms Wilson in this respect.
[10]Transcript of Proceedings, Iuele &Ors v Francis & Ors (Supreme Court of Victoria, S CI 2013 3200, Emerton J, 28 October 2013) 24.
I reject this submission. Apart from the fact that the Tribunal accepted the applicants’ submission that the proposal was for a farmers’ market, they were given a full opportunity in the Tribunal hearing to present their case and to address the Tribunal in relation to the findings that it should make about the nature of the proposed use and how the character of the market as a farmers’ market could be secured. The applicants availed themselves of that opportunity.[11] Had it been the case that, at the end of that process, questions remained in the Tribunal’s mind about the nature of the proposal and whether its character as a farmers’ market could be secured, that would have been the consequence of the Tribunal remaining unpersuaded by the evidence that was led and submissions that were made. It would not have been the consequence of a denial of a fair hearing.
[11]In argument, counsel for the applicants took the Court to parts of the transcript of the Tribunal hearing where the question of whether the proposal was for a farmers’ market or something else was discussed or dealt with in evidence, and where the issue of conditions was raised. Whether the proposed use qualified as a farmers’ market was clearly in issue. Furthermore, the applicant’s own town planning expert, Mr Barber, created some difficulty for the applicants’ case when he said that he understood the car boot element of the proposal to involve the sale of similar products to those sold in a garage sale (Transcript of Proceedings, Francis v Melton CC (Victorian Civil and Administrative Tribunal, P3025/2012, Baird SM, 20 April 2013) (“VCAT Transcript”) 120). Ms Wilson addressed this faux pas directly and made a submission to the Tribunal in which she said that she had been instructed by her clients that they were prepared to have car boot sales restricted to produce and crafts as a condition, should a permit issue. She said that there had been no discussion with Mr Barber as to his understanding of what was going to be sold from the car boots and that Mr Barber’s perception of what is sold in markets from car boots was different from what was actually proposed. The Tribunal made no response to this submission (VCAT Transcript 135).
Counsel for the applicants referred the Court to Ucar v Nylex Industrial Products Pty Ltd,[12] in which the Court of Appeal found that it was a breach of natural justice for a decision-maker to draw inferences from events observed in the courtroom without informing the party affected of the observations and the inferences contemplated to be drawn from the observations so as to afford the party an opportunity to deal with those matters. The present situation is in no way analogous to that of a decision-maker drawing inferences from conduct observed by the decision-maker in court. In this case, the applicants had every opportunity to make submissions and put material before the Tribunal concerning the character of the proposal and how that character could be secured by permit conditions or other means.
[12](2007) 17 VR 492.
Grounds (2) and (4) are not made out.
Ground (3): the Melton Tourist Precinct Development Plan
The Tribunal referred to the Melton Tourist Precinct Development Plan (the ‘Plan’) in paragraph 32 of the Reasons in the context of the proximity of the proposal to the tourist precinct described in the Plan and the potential for the proposed farmers’ market to cause pressure for retail/tourism based uses outside of the identified precinct and to undermine the possibility of a successful tourist precinct on the Melton Highway.
The Tribunal noted that the Plan was tendered at the Tribunal’s request. In a foot-note to the relevant bullet point in paragraph 32, the Tribunal commented that the Plan required the provision of a business plan for tourism developments, including the target market, projected demand, relationship to the local and regional tourism networks, and relevant market research. It stated that, although the Plan did not apply to the review site, ‘this [was] the type of information that [was] lacking to support submissions about the merits of the proposal’.[13]
[13]Reasons [32].
The applicants submit as follows:
It is submitted on behalf of the appellants that the Tribunal has fallen into error by taking into account an irrelevant consideration being the Melton Tourist Precinct Development Plan. There can be no doubt that the Plan does not apply to the subject site. Therefore, it is not relevant to the Tribunal’s determination of this application, what information is required by the Plan.
It is also telling that the discussion about the Melton Tourist Precinct Plan was one of the particular reasons why the Tribunal rejected the present application when it balanced the positive and negative aspects of the proposal. It was not merely a matter of discussion or by way of example, but in fact formed part of the substantive reasoning of the Tribunal in its ultimate determination to dismiss the application. The Development Plan and the types of information required by it should have formed no part of the reasoning of the Tribunal.[14]
[14]Applicants’ ‘Outline of Submissions’ in Iuele & Ors v Francis & Ors, S CI 2013 3200, 28 October 2013, [43]-[44].
This passage appears to me to conflate the Tribunal’s reference to the existence of the Plan in the context of considering the proposal for a farmers’ market nearby, and the Tribunal’s comment that information about the target market, projected demand, relationship to the local and regional tourism networks, and relevant market research was lacking in this case. However, I will consider whether either gave rise to an error of law.
In my view, the reference in the footnote to the application lacking the type of information required by the Plan amounts to no more than a comment made by an expert tribunal carrying out what is essentially an inquisitorial function about the type of information that might have been of assistance to it in considering the merits of the proposal. The Tribunal did not refuse the permit on the ground that the proposal did not comply with the Plan or with its information requirements. It simply commented that information of the ‘type’ required by the Plan (relating to target market, projected demand, relationship to the local and regional tourism networks, and relevant market research) would have been useful. It was entirely lawful (and appropriate) for the Tribunal to so comment, particularly as the Tribunal had complained about the lack of clarity in the proposal and had stated that, on the state of the information before it, it could not be confident that that the contended for social and economic benefits would be likely to be achieved. The Tribunal’s footnote reveals no error of law.
As to the consideration of the Plan itself, it is true that the Plan was probably not a document that the Tribunal was obliged to take into account when deciding the permit application, having regard to the matters specified in s 84B of the PE Act and, more generally, to the subject-matter, scope and purpose of the PE Act and the Melton Planning Scheme.[15] However, neither was it an irrelevant consideration that the Tribunal was forbidden to take it into account, having regard to the same matters. The Melton Planning Scheme contained a development overlay for the purposes of which the Plan was adopted. The tourism precinct described in the Plan and contemplated by the overlay was near the proposed farmers’ market. The proposed farmers’ market had the potential to affect the implementation of the Plan and to be affected by it. The fact that the review site was not covered by the development plan overlay did not, in and of itself, render the Plan irrelevant to the assessment required to be undertaken by the Tribunal. In my view, it was permissible[16] to have regard to the Plan when considering the use and development of the review site as a farmers’ market.
[15]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.
[16]As to ‘permissive’, ‘mandatory’ and ‘forbidden’ considerations in administrative decision-making, see Mark Aronson and Matthew Groves, Judicial Review of Administrative Action (Lawbook Co., 5th Edition, 2013) [5.30].
Ground (3) is not made out.
Ground (1): misconstruction of clause 22.08 of the Melton Planning Scheme
Clause 22.08 of the Melton Planning Scheme describes rural land use policy. It was one of the planning scheme policies against which the proposal was assessed. The applicants submit that the Tribunal has given the words in the policy objectives in clause 22.08 an unduly narrow construction and that it has failed to properly address the context of clause 22.08 and the policy objective of promoting economic development, tourism and rural enterprises which are compatible with and ancillary to, rural activities. They submit that the context in which the objectives should have been construed is the planning scheme as a whole, including the purpose of the Green Wedge Zone, which includes ‘to encourage sustainable farming activities and provide for a variety of productive agricultural uses’.
Clause 22.08 of the Melton Planning Scheme refers to the preservation of rural areas as being a ‘high priority’. Its policy objectives include, relevantly, the following:
·To maintain the rural areas predominantly in sustainable, agricultural use and to provide opportunities for alternative, more intensive rural uses.
…
·To promote economic development, tourism and rural enterprises which are compatible with, and ancillary to, rural activities.
·To ensure that all land use and development is in accordance with proper land management practices which will conserve the natural resources, amenity and environmental values of the rural areas, particularly with respect to air quality, noise and watercourse capacity.
·To maintain and enhance the landscape of the rural areas by encouraging development that is in harmony with the rural landscape.
Clause 22.08 also states that it is policy to ‘ensure that large tracts of agricultural land are clearly identified and set aside for productive agricultural activities.’
The first two dot points in paragraph 32 of the Reasons refer to the loss of productive land and to the removal of an available farming resource. I take the applicants’ complaint to be that the Tribunal placed too much emphasis on the fact that the proposal represented a loss of productive land and the removal of the land from the available farming resource, and too little emphasis on the economic development, tourism and rural enterprises objective.
In my view, this does not amount to a misconstruction of the policy, but reflects a decision made by the Tribunal as to how it would balance the competing policies in the Planning Scheme. Responsible authorities (and the Tribunal on review) are often called upon to resolve ‘potentially conflicting objectives’[17] within a planning scheme. The weight to be given to the various considerations which may be relevant on the one hand, and to particular facts bearing on those considerations on the other, is not fixed by the planning scheme but is essentially a matter for the decision maker.[18]
[17]Rozen v Macedon Ranges Shire Council & Anor [2010] VSC 583, [158].
[18]Ibid [172].
Accordingly, the balancing of the considerations in clause 22.08 of the Melton Planning Scheme was properly a matter for the Tribunal and does not raise a question of law.
Ground (1) is not made out.
Conclusion
The criteria for the grant of leave to appeal were considered in Secretary of the Department of Premier and Cabinet v Hulls.[19] Relevantly, the applicant must identify a question of law arising out of the Tribunal’s decision, but need not establish that the Tribunal erred. Rather, the applicant must establish that the there is a real or significant argument to be put that error exists. The public or general importance of a question may also be a relevant consideration. However, whether leave should be granted must always depend on the justice of the particular case.
[19][1999] 3 VR 331 as reaffirmed in Myers v Medical Practitioners Board of Victoria (2007) 18 VR 48, 55-6.
In this case, there is no real or significant argument to be put that error exists. Leave to appeal is refused.
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