Love v State of Victoria - [2009] VSC 215

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
VALUATION, COMPENSATION AND PLANNING LIST

No. 4504 of 2003

BETWEEN

THOMAS JAMES LOVE	Plaintiff
and
STATE OF VICTORIA	First Defendant
and
ROADS CORPORATION	Second Defendant

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JUDGE:	CAVANOUGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	26, 27, 28, 29 August 2008, 1, 2, 3, 4, 5, 8, 9, 10 September 2008 (last submissions received 11 September 2008, court book finalised 31 October 2008)
DATE OF JUDGMENT:	23 June 2009
CASE MAY BE CITED AS:	Love v State of Victoria & Anor
MEDIUM NEUTRAL CITATION:	[2009] VSC 215	First Revision: 3 December 2009

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ADMINISTRATIVE LAW – Planning scheme – Proposals for freeway – Advisory Committees – Extensive public hearings – Multitude of planning issues – Clash between industrial and mining interests – Ministerial decisions – Plaintiff planning quarrying on his land – Compulsory acquisition – Ascertaining decision-makers’ reasons – Improper purpose – Irrelevant considerations – Relevant considerations – Whether comparative acquisition costs a mandatorily relevant consideration – Whether duly considered – Unreasonableness – Improper delegation – Procedural fairness – Compliance with notice requirements – No administrative law error established – Negligence claims not arising – Proceeding dismissed.

Planning and Environment Act 1987 (Vic) ss 1, 4, 6, 7, 8, 9, 12, 29, 31 – 35, 97B and 151; Land Acquisition and Compensation Act 1986 (Vic) ss 4, 5, 6 and 8; Transport Act 1983 (Vic) ss 16, 31 38, 39 and 42, Transfer of Land Act 1958 ss 40 – 44; Land Acquisition and Compensation Regulations 1998 regulation 7 and Schedule 1 (Form 1).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N O’Bryan SC and Mr B Reilly	McClusky’s Lawyers
For the First Defendant	Mr C Caleo SC, Ms L Lo Piccolo and Mr J Castelan	Victorian Government Solicitor
For the Second Defendant	Mr J Delany SC, Mr P Chiappi and Ms M Foley	Phillips Fox

TABLE OF CONTENTS

Overview.............................................................................................................................................. 1

The statutory framework.................................................................................................................. 6

Amendments C23 and C46...................................................................................................... 12
Amendment C62...................................................................................................................... 15
The power to acquire................................................................................................................ 16
Registration of title................................................................................................................... 18

Ascertaining the reasons of the decision-maker: the East Melbourne Group case and general principles of judicial review.............................................................................................................................. 18

The factual history........................................................................................................................... 25

The plaintiff’s two main complaints............................................................................................. 74

The issues.......................................................................................................................................... 75

Amendment C23: improper purpose........................................................................................... 88

Amendment C23: irrelevant considerations............................................................................... 92

Refusal of the quarry permit..................................................................................................... 94
Benefit to Mr Scanlon.............................................................................................................. 95
“Easing” of quarrying-related “constraints”........................................................................... 95
“Agreed industrial use” for the Scanlon land.......................................................................... 96
Matters raised by Mr Haermeyer.............................................................................................. 98

Amendment C23: relevant considerations................................................................................ 100

Comparative compensation costs: a mandatory consideration?............................................. 101
The “Scanlon Undertaking”.................................................................................................. 109
The basalt stone resource........................................................................................................ 120
The Clonard Homestead Complex.......................................................................................... 131

Amendment C23: Absence or excess of power........................................................................ 140

Amendment C23: manifest unreasonableness........................................................................ 140

Amendment C23: delegation: personal preparation.............................................................. 140

Amendment C23: procedural fairness....................................................................................... 140

Transport Minister’s approval of the acquisition.................................................................... 141

Vicroads’ acquisition of the plaintiff’s land.............................................................................. 141

Formal requirements for the Notice of Intention to Acquire................................................. 141

Amendment C46: the Road Zone............................................................................................... 144

Amendment C62: The rezoning of the strip of Scanlon land............................................... 144

Invalidity consequences............................................................................................................... 145

Indefeasibility of title.................................................................................................................... 145

Estoppel, laches, discretion.......................................................................................................... 145

Trespass and nuisance.................................................................................................................. 145

Negligence....................................................................................................................................... 146

Conclusion....................................................................................................................................... 147

HIS HONOUR:

Overview

A freeway links the Melbourne Metropolitan Ring Road with the Hume Highway north of Craigieburn. It is commonly known as the Craigieburn By-Pass. Planning for such a link began in 1975. But there was great public controversy about the potential social, economic and environmental effects of the link and about the particular route that might be adopted. Various public inquiries and related state and federal processes took place. On 21 February 2001 the then Premier of Victoria announced a decision about the route to be adopted. After some limited modifications, the chosen route was specified in a public acquisition overlay contained in ministerial amendments to the Whittlesea Planning Scheme and the Hume Planning Scheme. The amendments were gazetted under the Planning and Environment Act 1987 (Vic) (“the P & E Act”) on 4 September 2001. On 4 October 2001 the Victorian Minister for Transport approved the acquisition of 212.049 hectares of land accordingly under the Transport Act 1983 (Vic). By further Ministerial amendments to the planning schemes, the land was rezoned to Road Zone Category 1 on 13 December 2002. The By-Pass was completed in December 2005. It is 17.5 km long. It is heavily used. All of the land on which it sits is now registered in the name of the Roads Corporation, the second defendant.

Previously, for many years, the plaintiff Thomas Love had been the registered proprietor of about 210 hectares of irregularly shaped land at 410 Cooper Street, Epping, running between Cooper Street to the south and O’Hern’s Road to the north (“the Love Pre-Acquisition Land”). The property had been in the Love family for decades. It included a homestead comprising a weatherboard house and a cottage and outbuildings (collectively referred to as “Clonard”) with certain historic features. Mr Love rented out the cottage from time to time. He and his wife lived in another, more modern, house on the property. The land was otherwise used for quarrying and for grazing cattle. Mr Love had plans to expand quarrying on the land. However, pursuant to a notice of acquisition under the Land Acquisition and Compensation Act1986 and the Transport Act 1983 published in the Government Gazette on 11 February 2002, a strip of Mr Love’s land about 1.6 km long comprising some 25 hectares, including most of Clonard (“the By-Pass Excision Land”), was compulsorily acquired by the Roads Corporation for the purposes of the By-Pass.

In this proceeding Mr Love alleges that the compulsory acquisition was legally invalid. He attacks various steps taken in the planning and acquisition process. In particular he says that if the By-Pass was to be located in the general neighbourhood of his land it ought to have been placed on a certain alignment about 300 metres to the east, such that it would have been on the land of his neighbour, Mr Scanlon, for part of its length between Cooper Street and O’Hern’s Road, rather than on his own land. He says that the authorities should have recognised that the chosen alignment of the By-Pass would largely prevent the quarrying of a basalt stone resource on his land and would thereby result in unwarranted acquisition costs and that a cheaper and more suitable alternative was to use his neighbour’s land in the area in question. He says that, in any event, Clonard ought to have been protected. He alleges that the decisions complained of were affected by improper purpose (in the administrative law sense), by failures to take into account numerous relevant considerations, by the taking into account of numerous irrelevant considerations and (to a limited extent) by breaches of the principles of procedural fairness; and he says that the decisions were so unreasonable that no reasonable person could have made them.

The plaintiff has not requested or received any statement of reasons under s 8 of the Administrative Law Act 1978 for any of the decisions in question. Unlike most cases that raise administrative law issues, this proceeding was not commenced under the Administrative Law Act 1978 (Vic) or under Order 56 of the Supreme Court Rules. Rather, it was commenced by writ and statement of claim. The plaintiff claims various declarations of invalidity. He seeks injunctions for the removal of the By-Pass from its present alignment and the rectification of the relevant title particulars. He claims damages for trespass and nuisance. He also claims damages for negligence in connection with the decision-making processes. He says that the regime for compensation under the Land Acquisition and Compensation Act 1986 is irrelevant because the acquisition was invalid. However he is the respondent in another proceeding pending in this Court in which, effectively in the alternative, he claims millions of dollars by way of compensation under that Act in respect of the acquisition of the relevant land.

The proceeding has had a long and chequered history. Responsibility for that lies largely, if not entirely, on the plaintiff’s side. Originally there were three defendants: the then Victorian Minister for Planning (Mr Thwaites), the then Victorian Minister for Transport (Mr Batchelor) and the Roads Corporation. The Ministers have since been removed as defendants and the State of Victoria added. The proceeding was commenced in February 2003. The present defendants say that, even then, it was issued much too late. However an interlocutory injunction restraining the Roads Corporation from disturbing the main parts of the Clonard homestead was obtained in March 2003.[1] Since then, the plaintiff’s allegations have changed significantly from time to time. He has engaged new legal representatives more than once. A protracted application for leave to file and serve an amended statement of claim and to add certain new parties was refused by Williams J on 22 February 2006.[2] Her Honour’s decision was based in part on the prolixity, obscurity and embarrassing nature of the proposed amended statement of claim, which had itself already been re-drafted several times. For a considerable time the plaintiff maintained serious allegations of impropriety against various individuals, but he has since wholly withdrawn all such allegations. The current amended statement of claim (“ASOC”) was filed pursuant to leave granted by Osborn J on 20 June 2007. By a later order, his Honour directed that the trial of this proceeding be split so as to defer the question of the quantum of damages. All other questions in the proceeding, including questions as to the appropriate form of any other kind of relief, fall for determination at this stage.
[1]Love v Thwaites and Others (No 3) [2003] VSC 60 (6 March 2003) (Nettle J). See also Love v Thwaites and Others (No 2) [2003] VSC 53 (28 February 2003) (Nettle J).
[2]Love v Thwaites [2006] VSC 57.

The plaintiff’s case canvasses numerous events and intensive activity involving a large range of individuals, organisations and government bodies over a period of some 8 years. The State of Victoria and the Roads Corporation are sought to be made responsible for a series of alleged mistakes by Ministers and officials which allegedly amounted to or led to administrative law errors and which allegedly also involved negligence. The ASOC is 99 pages long, with multiple cross references. It is highly convoluted. In parts, it is almost incomprehensible. The defence of the State of Victoria is 91 pages long. The Roads Corporation’s defence occupies 148 pages plus a four page index. Discovery was a vast exercise, with numerous interlocutory skirmishes. Various subpoenas were issued and responded to. Interrogatories were administered by the plaintiff and answered. The court book of pleadings and documentary evidence originally comprised over 16,000 pages divided into 38 volumes. It was not in chronological order. During the hearing and over a period of approximately two months after the hearing, the court book was reduced somewhat so as to include only the documents tendered by one party or another and so as to reduce duplication, but it remains voluminous,[3] and it is still not in chronological order or in any other sensible order. There are additional thick volumes of legislation, authorities, written submissions and other relevant documents. The plaintiff’s written outline of submissions for the final hearing occupies 56 pages, the State of Victoria’s 48 pages and the Roads Corporation’s 93 pages. All are heavily footnoted. Further written submissions were handed up during the hearing.
[3]The pages cannot readily be counted because the page numbering is now discontinuous, and some “pages” have multiple folios, but the final court book still appears to occupy well over 8,000 pages.

The hearing was originally estimated to take 12 weeks, but with skilful and efficient advocacy by all counsel it actually occupied only 12 days, albeit with the effect of requiring a great deal of work to be done by the Court in chambers after the conclusion of the hearing.

Shortly after the beginning of the hearing a view of the land in question and surrounding areas was conducted.

The bulk of the evidence for the plaintiff was adduced by way of affidavit or, in the case of Mr Love himself, by way of a consolidated witness statement constructed during the hearing from portions of various prior affidavits. That witness statement was 180 pages long, with multiple cross-references to other documents on almost every page. Certain expert evidence that the plaintiff proposed to call in relation to the value of the stone resource was ruled inadmissible, for reasons I will recount in due course. Five of the plaintiff’s witnesses, including himself, were called to give additional oral evidence and were cross-examined. No witnesses were called by either of the defendants.

In the end, counsel for the plaintiff declined to press certain limited aspects of the ASOC. Additional written submissions, including submissions as to the contents of the court book, were filed after the hearing, by leave. The transcript of the hearing, including addresses, occupies over 1,500 pages. Virtually every page includes one or more cross-references to other documents (especially evidentiary material, including innumerable maps, as well as pleadings, outlines, aides memoire, legislation, authorities and other things) all of which needed to be turned up, read and considered in conjunction with the transcript. A similar exercise was also necessary in relation to Mr Love’s heavily cross-referenced witness statement.

Although the factual history to which the court was taken is very detailed and very lengthy, in the end there were few significant issues of primary fact. For the most part, the primary facts are constituted by, or recorded in, documents. Mostly, the issues of fact that remained were issues about the inferences to be drawn from the primary facts, including inferences as to the nature of the reasoning of various Ministers and officials for particular decisions and acts, and as to causation generally. In addition, there were issues about the characterisation of the facts for the purposes of administrative law and for the purposes of the law of negligence.

The courts are anxious to ensure that public authorities do not exercise powers of compulsory acquisition of property in an unlawful manner. However, despite the avalanche of material, the plaintiff has failed to establish that the compulsory acquisition of the By-Pass Excision Land was affected by any administrative law errors at all much less by any errors that would ordinarily produce invalidity. Nor is there any legal basis for a permanent injunction protecting Clonard. In any event (although it is unnecessary to decide), the registered title of the Roads Corporation may well be indefeasible even as against Mr Love. Further, even if vitiating error had been shown, there would be powerful discretionary reasons for refusing the declaratory and injunctive relief sought. The claims in trespass, nuisance and negligence were all premised on the alleged invalidity of the acquisition. Invalidity not having been established, those claims fail too. They faced various other hurdles, some of which, at least, would also have been insuperable. Accordingly, the proceeding falls to be dismissed. Mr Love will have to be content with the statutory compensation available under the Land Acquisition and Compensation Act 1986.

The statutory framework

This proceeding being essentially an administrative law case – and the plaintiff having acknowledged that the entire case depends on establishing the invalidity of the acquisition of the By Pass Excision Land – the relevant statutory framework is vital and should be borne in mind from the outset. Otherwise there is a risk of becoming lost in the morass of facts and documents relied on by the plaintiff, and of forgetting the true, limited scope and purpose of any proceeding by way of judicial review of administrative action, as explained by Brennan J in Attorney-General (NSW) v Quin:[4]

“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s powers. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”

[4](1990) 170 CLR 1 at 35.

As mentioned above, both state and federal processes were involved in the planning and construction of the By-Pass. Before me, the parties have concentrated on the relevant Victorian legislation. I note in passing that the entire project was federally funded and that it was affected by Commonwealth statutes relating to transport and to the environment. Indeed, in December 2002, shortly before this proceeding was issued, Mr Love’s then solicitor, Mr Stevens, wrote to the relevant Commonwealth Ministers seeking their intervention in relation to the placement of the By Pass on Mr Love’s land.[5] The relevant Commonwealth legislation was discussed by Finkelstein J in dismissing a challenge brought in the Federal Court by an environmental group concerned about various aspects of the project.[6] However no particular provisions of the Commonwealth legislation were referred to or relied on by any of the parties before me.
[5]See further below.
[6]Friends of Merri Creek v Meakins [2003] FCA 671.

The Victorian statutory provisions of most significance are contained in the P & E Act, the Land Acquisition and Compensation Act 1986, the Transport Act 1983, and the Transfer of Land Act 1958. Mr Love attacks three ministerial amendments to the Whittlesea Planning Scheme made under the P & E Act. The first and most important was Amendment C23, which was gazetted on 4 September 2001 under the name of Planning Minister Thwaites and imposed the public acquisition overlay. The second was Amendment C46, which was gazetted on 13 December 2002 under the name of Planning Minister Delahunty and converted the public acquisition overlay to a road zone. The third was Amendment C62, which was gazetted on 9 December 2004 and rezoned a certain strip of land on the neighbouring Scanlon land from “rural” to “industrial”. Mr Love also attacks the approval, given by Transport Minister Batchelor on 4 October 2001 under s 42(1) of the Transport Act 1983,[7] of the acquisition by the Roads Corporation of the By-Pass Excision Land. Finally, the defendants rely on the indefeasibility provisions of the Transfer of Land Act 1958 to support the title of the Roads Corporation as the registered proprietor of the land since May 2003.
[7]As it then stood.

The parties are agreed about the form of the applicable legislation as at the relevant dates. I will refer to the legislation in that form and ignore any subsequent amendments.[8]
[8]The following summary of the relevant provisions is based in part on the account in the State of Victoria’s outline of submissions dated 19 August 2008, which, to that extent, is not in dispute. See also Whitehorse City Council v Golden Ridge Investments Pty Ltd (2005) 13 VR 275 at 281-283, to which the plaintiff drew attention, for a comparable exposition by the Court of Appeal of the Victorian statutory planning framework.

Section 1 of the P & E Act provides that the purpose of the Act 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”.

The use, development and protection of land in Victoria is governed by planning schemes.[9] A planning scheme is a statutory creation which sets out objectives, policies and provisions relating to the use or development of land. The Act sets out, among other things, procedures for preparing and amending planning schemes.
[9]See generally Part 2 of the Act.

At the time when Minister Thwaites caused Amendment C23 to be gazetted, the new format Whittlesea Planning Scheme, which incorporated the Victorian Planning Provisions (“VPPs”), was in force with respect to the Love Pre-Acquisition Land.[10]
[10]See s 4A(1) of the P & E Act.

The VPPs are a set of “standard planning provisions”[11] for planning schemes. The VPPs are used as a statewide reference template, to ensure that consistent provisions for certain matters are maintained across Victoria and that the construction and layout of planning schemes are always the same.
[11]Ibid.

As with all planning schemes, the Whittlesea Planning Scheme includes a statement of the objectives of planning in Victoria, a statement of the purposes of the planning scheme, the State Planning Policy Framework (“SPPF”) and the Local Planning Policy Framework (“LPPF”).

Section 4(1) of the P & E Act states the objectives of “planning in Victoria” and s 4(2) states the objectives of “the planning framework established by this Act”. It is desirable to set out both sub-sections in full:

“4 Objectives
(1)The objectives of planning in Victoria are—
(a)to provide for the fair, orderly, economic and sustainable use, and development of land;
(b)to provide for the protection of natural and man-made resources and the maintenance of ecological processes and genetic diversity;
(c)to secure a pleasant, efficient and safe working, living and recreational environment for all Victorians and visitors to Victoria;
(d)to conserve and enhance those buildings, areas or other places which are of scientific, aesthetic, architectural or historical interest, or otherwise of special cultural value;
(e)to protect public utilities and other assets and enable the orderly provision and co‑ordination 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.

(2)The objectives of the planning framework established by this Act are —
(a)to ensure sound, strategic planning and co‑ordinated action at State, regional and municipal levels;
(b)to establish a system of planning schemes based on municipal districts to be the principal way of setting out objectives, policies and controls for the use, development and protection of land;
(c)to enable land use and development planning and policy to be easily integrated with environmental, social, economic, conservation and resource management policies at State, regional and municipal levels;
(d)to ensure that the effects on the environment are considered and provide for explicit consideration of social and economic effects when decisions are made about the use and development of land;
(e)to facilitate development which achieves the objectives of planning in Victoria and planning objectives set up in planning schemes;
(f)to provide for a single authority to issue permits for land use or development and related matters, and to co-ordinate the issue of permits with related approvals;
(g)to encourage the achievement of planning objectives through positive actions by responsible authorities and planning authorities;
(h)to establish a clear procedure for amending planning schemes, with appropriate public participation in decision making;
(i)to ensure that those affected by proposals for the use, development or protection of land or changes in planning policy or requirements receive appropriate notice;
(j)to provide an accessible process for just and timely review of decisions without unnecessary formality;
(k)to provide for effective enforcement procedures to achieve compliance with planning schemes, permits and agreements;
(l)to provide for compensation when land is set aside for public purposes and in other circumstances.”

In addition, the following provisions contained within s 6 of the P & E Act should be noted:
“6 What can a planning scheme provide for?
(1)A planning scheme for an area—
(a)must seek to further the objectives of planning in Victoria within the area covered by the scheme; and
(aa)must contain a municipal strategic statement, if the scheme applies to the whole or part of a municipal district; and
(b)may make any provision which relates to the use, development, protection or conservation of any land in the area.

(2)Without limiting subsection (1), a planning scheme may—
(a)set out policies and specific objectives;
(b)regulate or prohibit the use or development of any land;
(c)designate land as being reserved for public purposes;
(d)include strategic plans, policy statements, codes or guidelines relating to the use or development of land; … .”

Provision is made for the primacy of State standard provisions.[12] Provision is also made to the effect that “a specific control over land prevails over a municipal strategic statement or any strategic plan, policy statement, code or guidelines in the planning scheme”.[13]

[12]Section 7(4)(b)(i).

[13]Section 7(4)(b)(ii).

The SPPF derives from the VPPs and is identical in all planning schemes. It comprises a statement of general principles for land use and development planning and specific policies dealing with issues relating to particular areas. It commences:

“The purpose of State policy in planning schemes is to inform planning authorities and responsible authorities of those aspects of State level planning policy which they are to take into account and give effect to in planning and administering their respective areas. It is the State Government’s expectation that planning and responsible authorities will endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development.”[14]

[14]See, for example, clause 11.01 of the Whittlesea Planning Scheme.

Clause 11.02 of the SPPF specifies the goal of the framework as:

“… ensur[ing] that the objectives of planning in Victoria (as set out in Section 4 of the Planning and Environment Act 1987) are fostered through appropriate land use and development planning policies and practices which integrate relevant environmental, social and economic factors in the interests of net community benefit and sustainable development.”

The LPPF contains a municipal strategic statement (“MSS”) and local planning policies.[15] The framework identifies long term strategic directions for land use and development in the municipality and provides the rationale for the zone and overlay requirements and particular provisions in the scheme. Local planning policies provide guidance to decision-making on a day to day basis where such guidance is not provided by the VPPs.
[15]See section 7(1)(b) and (3) and s 12A of the Act.

The City of Whittlesea MSS sets the strategic planning framework for the City of Whittlesea and encapsulates significant planning policy directions for the municipality. The MSS was prepared having regard to “strategic planning documents and Ministerial Directions, including, in particular, the Plenty Valley Strategic Plan, City of Whittlesea General Plan and Ministerial Direction No 7”,[16] as well as State Government policy, Council planning policies and community and stakeholder consultation.[17]
[16]See clause 21.01 of the Whittlesea Planning Scheme. Direction 7 was entitled “Plenty Valley Growth Area”; it was repealed on 1 September 2006.
[17]See clause 21.01 of the Whittlesea Planning Scheme.

Amendments C23 and C46

Amendment C23 identified the land to be acquired by the Corporation for the future construction of the Craigieburn Bypass by applying a public acquisition overlay (“PAO”) to the identified land. This included the Bypass Excision Land. The purpose of the PAO was to reserve the land for a public purpose, being the construction of the Craigieburn Bypass, and thus ensure that changes to use and development of the land did not prejudice the purpose for which the land was to be acquired.

Amendment C46 removed the PAO from the land reserved for the public purpose of the Craigieburn Bypass and rezoned it to a road zone.

Each of Minister Thwaites and Minister Delahunty was acting in his or her capacity as a “planning authority” when, respectively, Minister Thwaites purportedly prepared, adopted and approved Amendment C23 and Minister Delahunty purportedly prepared, adopted and approved Amendment C46.

Section 8 of the Act confers power on the Minister to prepare a planning scheme or amendments to any provision of a planning scheme. Section 9 provides that any person given such power under section 8 is a “planning authority” under the Act.

Section 12 of the Act specifies the duties and powers of planning authorities. It should be set out in full:

“12 What are the duties and powers of planning authorities
(1)A planning authority must—
(a)implement the objectives of planning in Victoria;
(b)provide sound, strategic and co-ordinated planning of the use and development of land in its area;
(c)review regularly the provisions of the planning scheme for which it is a planning authority;
(d)prepare amendments to a planning scheme for which it is a planning authority;
(e)prepare an explanatory report in respect of any proposed amendment to a planning scheme.

(2)In preparing a planning scheme or amendment, a planning authority —
(a)must have regard to the Minister’s directions; and
(aa)must have regard to the Victorian Planning Provisions; and
(ab)in the case of an amendment, must have regard to any municipal strategic statement, strategic plan, policy statement, code or guideline which forms part of the scheme; and
(d)must take into account any significant effects which it considers the scheme or amendment might have on the environment or which it considers the environment might have on any use or development envisaged in the scheme or amendment; and
(c)may take into account its social effects and economic effects.[18]
[18]My emphasis.

(3)A planning authority may —
(a)carry out studies and commission reports; and
(b)do all things necessary to encourage and promote the orderly and proper use, development and protection of land in the area for which it is a planning authority; and
(c)take any steps and consult with any other persons it considers necessary to ensure the co-ordination of the planning scheme with proposals by those other persons.”

The parties are in dispute about the consequences of the use of the word “may” in s 12(2)(c) as compared with the use of “must” in the remainder of s 12(2) and in s 12(1). The defendants submit that the distinction supplies a complete answer to the plaintiff’s case insofar as the plaintiff submits that the Ministers were bound to have regard to any social or economic effects of the relevant planning scheme amendments. The plaintiff disputes this. He points out that in Whitehorse City Council v Golden Ridge Investments Pty Ltd[19] the Court of Appeal summarised the relevant provisions of the Act[20] as envisaging, among other things, that land use and development planning and policy will be “integrated with environmental, social, economic, conservation and resource management policies at State, regional and municipal levels”. On the other hand, I note that the Court of Appeal did not expressly refer to s 12(2) at all. I will return to this debate in the context of the plaintiff’s claim that the Ministers failed to take into account relevant considerations.
[19](2005) 13 VR 275 at 283, [26].
[20]Referring, apparently, in this regard to s 4(2)(c) in particular and to s 4(1) generally.

Section 29 of the Act confers power on the planning authority to “adopt the amendment”. Section 35 of the Act confers power on the Minister to “approve an amendment”, whether the amendment has been prepared by the Minister himself or herself or submitted to the Minister under section 31. Both Minister Thwaites (in respect of Amendment C23) and Minister Delahunty (in respect of Amendment C46) purported to exercise the relevant powers to “adopt the amendment” and to “approve an amendment”.

Amendment C62

Amendment C62 rezoned a strip of land on the eastern side of the Craigieburn Bypass from a farming zone to an industrial zone. That land was then owned by Northpoint Enterprise Park Pty Ltd, a company with which Mr Scanlon was associated.

Minister Delahunty did not prepare Amendment C62. She was not the “planning authority” for the purposes of section 8 of the Act. On 22 June 2004, the City of Whittlesea resolved to adopt Amendment C62 and refer it to the Minister for approval.[21] Sections 32 to 35 of the Act governed the ambit of the Minister’s powers upon receipt of the adopted amendment.
[21]Paragraph 91 of the ASOC, admitted by both defendants.

Under those provisions, the Minister may direct the planning authority to give more notice (if the Minister thinks the notice given by the planning authority was inadequate)[22] or direct the planning authority to give notice of any changes to the amendment which the Minister proposes to make.[23] The Minister may also allow any person affected by a change to an amendment to make a submission or refer any submissions to a panel appointed under Part 8 of the Act.[24]
[22]Section 32 of the Act.
[23]Section 33 of the Act.
[24]Section 34 of the Act.

Pursuant to section 35(1) of the Act, the Minister may approve an amendment submitted to the Minister under section 31 with or without changes and subject to any conditions the Minister wishes to impose.

The power to acquire

Sections 4 and 5 of the Land Acquisition and Compensation Act 1986 provide that an “Authority” which is empowered under a “special Act” to acquire an interest in land by compulsory process must not commence to acquire that interest unless the land has first been reserved by or under a planning instrument for a public purpose.[25] Accordingly, the reservation for a public purpose of the land required for the Craigieburn Bypass, including the Bypass Excision Land, was necessary to enliven the power of the Corporation to acquire that land by compulsory purchase under the Land Acquisition and Compensation Act 1986.
[25]Sub-sections 5(2)-(4B) of the Act provide for irrelevant exceptions.

At relevant times, section 42[26] of the Transport Act 1983 provided:
[26]As in force between 1 January 1999 and 30 June 2003.

“(1) A Corporation may, with the approval of the Minister, purchase or compulsorily acquire any land which is or may be required by the Corporation for or in connexion with the performance of its functions or the achievement of its objects.
(2) The Land Acquisition and Compensation Act 1986 applies to this Act and for that purpose —
(a)the Transport Act 1983 is a special Act; and
(b)the Public Transport Corporation or the Roads Corporation (as the case requires) is the Authority; and
(c)‘land’ includes a strata above or below the surface of land and easements and rights to use land or strata above or below the surface of the land; and
(d)section 75 of the Land Acquisition and Compensation Act 1986 has effect as if it empowered the Authority to enter any land and section 75(6) did not apply.

(2A) In addition to its powers under section 75 of the Land Acquisition and Compensation Act 1986, a Corporation may carry out investigations on and search for and obtain materials from any land.”

Also worthy of note is s 16(1)(a) of the Transport Act 1983 which gave to the Roads Corporation a function, among others, “to maintain, upgrade, vary and extend the State’s declared road network”. So far as presently relevant, s 16(3) of the Transport Act 1983 provided:

“(3) In the exercise of its functions, the Roads Corporation must have regard to the achievement of the following objects—
(a)to make use of available transport resources in ways which are most beneficial to the community and with due regard to the enhancement of the environment;
(b)to operate within Government policy;
…
…

(f)to improve the State's principal road network to facilitate the efficient vehicular movement of people and goods;
(g)to improve productivity;
…

(n)to facilitate accountability at all levels within the Corporation by maintaining suitable information and reporting systems;
(o)to manage its assets effectively, including real estate, to protect future options and to provide for the planning, design, construction and management of new infrastructure and facilities as required;
(q)to minimise interference to the community arising from the construction and maintenance activities of the Corporation;
(r)to provide mechanisms and full information to enable effective and timely participation by the community in decision making about facilities, services and road works.”

The Roads Corporation, as a body corporate, was given wide general powers in fairly standard form by s 38; and various particular powers, including powers to enter land for purposes relating to roads, by s 39 and Schedules 2 and 4. By s 31(1) it was provided that the Roads Corporation “must exercise its powers and discharge its duties subject to the general direction and control of the Minister, and to any specific direction given by the Minister”.

Registration of title

The defendants rely on the well known “indefeasibility” provisions of the Transfer of Land Act 1958, especially ss 40-44. It is unnecessary to set them out here.

Ascertaining the reasons of the decision-maker: the East Melbourne Group case and general principles of judicial review

At common law, administrative decision-makers are not obliged to give reasons for their decisions;[27] and, as mentioned above, the plaintiff did not seek any statement of reasons under s 8 of the Administrative Law Act 1978 (Vic) for any of the decisions in question.[28] So there is no detailed statement of reasons for any of the decisions in question. The nearest thing to such a statement is a 16 page document called “Ministerial Assessment” signed by Minister Thwaites on 20 February 2001 explaining, among other things, his decision to adopt as the route for the By-Pass a proposed route that had come to be known as “Option Y”. This was the decision that was announced by the Premier the next day. Amendment C23 itself was not finalised until some six months later. The documents for the Amendment include a short, formal, signed statement by Minister Thwaites to the effect that he had prepared Amendment C23 in accordance with s 8 of the P & E Act, having taken into account “in accordance with s 12 of the Act” environment-related effects; and had had regard to “the relevant Minister’s directions”.[29]
[27]Public Service Board of New South Wales v Osmond (1986) 159 CLR 656.
[28]It appears that no statement of reasons was sought from any Commonwealth decision-maker under s 13 of the Administrative Decisions (Judicial Review) Act 1977 either. I express no view as to whether either section would have applied.
[29]CB 5767. Compare s 12(2) of the P & E Act.

In this regard, the parties have made reference to the judgment of the Trial Division constituted by Morris J in East Melbourne Group Inc v Minister for Planning and Another.[30] That case concerned the validity of a certain ministerial amendment to the Melbourne Planning Scheme. The Minister for Planning had exempted herself, under s 20(4) of the P & E Act, from complying with the requirements contained in ss 17, 18 and 19 of the Act relating to notification to interested persons of the proposed planning scheme amendment. Pursuant to guidelines contained in a published “practice note”, the Minister had issued a public statement of her reasons for intervening in the matter, including her reasons for exempting herself from the notification requirements. The stated reasons for the exemption decision indicated that the Minister had based her decision principally on a particular matter. Before Morris J the Minister sought to rely on various departmental documents to establish that her main reason or purpose was otherwise than as indicated in the public reasons. Morris J accepted this. In a passage relied on before me by the plaintiff,[31] Morris J said:[32]

“All the evidence should be considered
62 When it comes to assessing the plaintiff’s claim that the Minister acted unreasonably or was motivated by improper purposes or had regard to irrelevant considerations, I hold that it is necessary to consider all the evidence which bears on this question and not just the public documents that explained the Minister’s decisions. As a matter of logic, all evidence which is relevant should be weighed in the balance. Although certain types of documents ought be accorded more weight than other types of documents, one cannot rule out the possibility that the public documents explaining the Minister’s decision were intended to put a gloss or ‘spin’ on the real basis for the decision, possibly to avoid or minimise public criticism.”

[30](2005) 12 VR 448.

[31]Plaintiff’s outline of submissions page 15, footnote 68.

[32](2005) 12 VR 448 at 470 [62].

On 31 October 2008, after the conclusion of the hearing in the present case, the Court of Appeal gave judgment in an appeal from the decision of Morris J. By majority, the appeal was allowed.[33] The majority held that, ordinarily, a decision-maker should be treated as bound by – and confined to – the reasons which the decision-maker gives for the decision in question;[34] and that that principle applied in the circumstances of the matter the subject of the decision under appeal.[35] On the basis of the Minister’s stated reasons, the exemption decision was held to be legally insupportable.[36] The majority said, in particular,[37] that it could not agree with the observation of the trial judge (quoted above) that –

“… one cannot rule out the possibility that the public documents explaining the Minister’s decision were intended to put a gloss or ‘spin’ on the real basis for the decision, possibly to avoid or minimise public criticism.”

[33]Ashley and Redlich JJA; Warren CJ dissenting.

[34][2008] VSCA 217 at [308].

[35]At [310]-[315].

[36]At [332].

[37]At [284].

However no party in the present proceeding has sought leave to make further submissions in the light of the judgment of the Court of Appeal in East Melbourne Group. Nor do I think that there is any need for me to suggest or invite an application for such leave. The defendants do not ask the Court to treat the Ministerial Assessment signed by Minister Thwaites as being anything other than the Minister’s true and complete reasons for the adoption of Option Y. On the other hand, the Ministerial Assessment itself[38] makes no express reference to the Love/Scanlon issues. And, as mentioned above, Amendment C23 itself was not finalised until about six months later. Recognising these things, the plaintiff, who bears the relevant onus of proof,[39] asks the Court to draw inferences about the Minister’s reasoning in relation to Amendment C23 from other facts and documents. In the context of a suggestion that the decision-maker, as distinct from the opposite party, should be entitled to resort to extrinsic documents to explain a decision, the majority in East Melbourne Group said:[40]

“312 We put to one side a body of law which addresses the situation where a decision is unsupported by any reasons. It is permissible in such a case to look behind the decision to the material before the decision-maker, in an attempt to discern the reasons for the decision. Documents placed before the decision-maker may be considered. The court may be able to say that the decision could be explained by such material. Denver Chemical Manufacturing v Commissioner of Taxation [1949] HCA 25; (1949) 79 CLR 296, 313 (Dixon J). The inference may then be available that the information contained in the documents was taken into account and provided the reason for the decision. Sydney Municipal Council v Campbell[1925] AC 338; Telstra Corporation v Hurstville City Council & ors(2002) 189 ALR 737, 758 [50] (Sundberg and Finkelstein JJ). But when a statement of reasons has been provided, a failure to refer to particular matters or give other reasons will justify the inference that such other matters or reasons were not relied upon. ARM Constructions v Deputy Commissioner of Taxation(No 2)(1986) 65 ALR 343, 351 (Burchett J); Collins v Repatriation Commission(1980) 32 ALR 581; Western Australia v Minister for Aboriginal Affairs and Torres Straight Islander Affairs (Carr J, Federal Court of Australia, 24 May 1995, unreported); Faulkner v Conwell [1989] FCA 103; (1989) 99 ALR 92, 96 (Jenkinson J, with whom Woodward and Ryan JJ agreed).”

However, where it is the opposite party that seeks to establish the true reasons, or additional reasons, of a decision-maker, then, subject to the requirements of relevance and reasonableness, I can see no basis for restricting the field of evidence or material to which that opposite party might resort, whether or not a statement of reasons has been provided.[41] In any event, I am prepared to proceed on that basis, in the plaintiff’s favour. On the other hand, as indicated above, the plaintiff still carries the burden of persuading me that one or more of the relevant decisions or actions was affected by vitiating administrative law error.[42] And, as I will explain in due course, the plaintiff has not discharged that burden.

[38]What it may expressly or impliedly incorporate or adopt by reference is another matter.

[39]Parramatta City Council v Hale (1982) 47 LGRA 319 at 335 per Street CJ.

[40][2008] VSCA 217 at [312].

[41]See Minister for Immigration and Ethnic Affairs v Arslan (1984) 55 ALR 361 at 362-365.

[42]In addition to Parramatta City Council v Hale, loc. cit, see Moyston Court Fisheries Ltd v Malios [2007] VSC 518 at [55] and cases there cited and Ventrice v Riva Plaster Pty Ltd [2008] VSC 415 at [12] and cases there cited. Without a statement of reasons it can be a difficult burden to discharge: see, eg Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212.

More generally, the East Melbourne case contains authoritative recent restatements, made in a related context, of relevant principles of administrative law. I note in particular the following passages in the judgment of the majority:[43]
[43][2008] VSCA 217 at [174]-[184], omitting [179]-[182].

“Judicial Review
[174] The proceeding sought judicial review of the Minister’s decision. The scope and purpose of judicial review is to ensure that powers are exercised for the purposes for which they were conferred and in the manner in which they were intended to be exercised. JJ Spigelman AC ‘The Integrity Branch of Government’ (2004) 78 (11) ALJ 724, 730. It is the extent of power and the legality of its exercise to which judicial review is directed. Attorney-General (NSW) v Quin[1990] HCA 21; (1990) 170 CLR 1, 35-36 (Brennan J); Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); Abebe v Commonwealth of Australia[1999] HCA 14; (1999) 197 CLR 510, 579 (Gummow and Hayne JJA); Minister for Immigration and Multicultural Affairs v Yusuf[2001] HCA 30; (2001) 206 CLR 323, 373 (Kirby J ).
Restraint in review of administrative decisions
[175] Having regard to the way in which the litigation was conducted, both at trial and on appeal, it is necessary for us to consider the material in order to see what reason or reasons the Minister gave for her exercise of the discretion to exempt. That said, we are conscious of the need to proceed with caution lest we exceed our supervisory role and trespass into the forbidden field of merits review. Minister for Aboriginal Affairs v Peko-Wallsend Ltd[1986] HCA 40; (1986) 162 CLR 24, 41-42 (Mason J); Attorney-General (NSW) v Quin[1990] HCA 21; (1990) 170 CLR 1, 36-37 (Brennan J); Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources[2005] NSWCA 10, [127] (Spigelman CJ); Bruce v Cole (1998) 45 NSWLR 163, 184; Zhang v Canterbury City Council (2001) 51 NSWLR 589. It would not suffice if we took the view that a different decision would have been more appropriate or that another Minister might have reached a different result. Minister for Immigration and Multicultural Affairs v Eshetu[1999] HCA 21; (1999) 197 CLR 611, 626-627, (Gleeson CJ and McHugh J); Friends of Hinchinbrook Society Inc v Minister for Environment (No 2)(1997) 69 FCR 28, 59-65, (Sackville J). As Brennan J said in Attorney-General (NSW) v Quin[1990] HCA 21; (1990) 170 CLR 1, 35-36:
The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

[176] In Buck v Bavone[1976] HCA 24; (1976) 135 CLR 110, 118-119. Gibbs J observed
However, where the matter of which the [decision-maker] is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached.

[177] Gleeson CJ and McHugh J, in their joint judgment in Minister for Immigration and Multicultural Affairs v Eshetu[1999] HCA 21; (1999) 197 CLR 611 referred to the following passage from the judgment of Lord Brightman in Puhlhofer v Hillingdon London Borough Council[1986] UKHL 1; [1986] AC 484, [14]:
Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.

[178] We recognise that ‘minor infelicities or trivial lapses in logic in cases where [ a decision-maker’s] satisfaction as to a factual state provides the jurisdictional foundation for the exercise of power’ would not warrant judicial review. Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59, [148] (Kirby J). As Kirby J stated in Re Minister for Immigration and Multicultural Affairs :
The degree of restraint that a court will exercise in circumstances where the fact-finding process is said to have miscarried to a significant degree, so as to amount to jurisdictional error, will to a considerable extent depend upon the nature of the applicable power, the statutory context and the effect of the impugned decision. For instance, where an assessment and evaluation of complex evidence is required by an expert administrative agency, a greater degree of restraint may be called for. Similarly greater caution is appropriate where the subject matter of the decision involves a significant element of governmental policy or allocative determinations, making it more remote from ordinary judicial experience. Ibid [130]-[131].

‘Wednesbury’ unreasonableness
…
[183] A decision may be unreasonable in the Wednesbury sense because it is manifestly unreasonable, that is, it simply defies comprehension, R v North and East Devon Health Authority;ex parte Coughlan(2001) QB 213, 244 (Lord Woolf MR) or because it is obvious that the decision-maker consciously or unconsciously acted perversely. Puhlhoffer v Hillingdon London Borough Council[1986] UKHL 1; [1986] AC 484, 518 (Lord Brightman). Wednesbury unreasonableness will also be made out where there was manifest illogicality in arriving at the decision – there being illogical findings, or inferences of fact unsupported by probative material or logical grounds. Australian Broadcasting Tribunal v Bond[1990] HCA 33; (1990) 170 CLR 321, 356 (Mason CJ); Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1; (1999) 160 ALR 543, [20]-[26]; Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611, 145 (Gummow J); Gamaethige v Minister for Immigration and Multicultural Affairs[2001] FCA 565; (2001) 183 ALR 59, [28] (Finkelstein J); Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 [34], [37] (McHugh and Gummow JJ); [127] (Kirby J); Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446, [559]-[561] (Weinberg J). A decision resting upon a finding of fact totally unsupported by evidence which is critical to the decision, whether expressed as the taking into account of an irrelevant consideration, error of law, or unreasonableness, cannot stand: Luu v Renevier(1989) 91 ALR 39. ‘Irrationality’ thus encompasses disregard of relevant considerations, giving regard to irrelevant considerations and manifest unreasonableness. Associated Provincial Picture Houses Ltd v Wednesbury Corporation[1948] 1 KB 223, 233-4; Council of Civil Service Unions v Minister for Civil Service[1985] AC 374, 410 (Lord Diplock).”

Again, I see no need to reconvene the hearing to discuss these general statements made in East Melbourne Group. They do not depart from previous authority – at least, they do not do so in any way that might be detrimental to the plaintiff. If anything, insofar as they relate to challenges to allegedly illogical or otherwise defective fact finding, they evince an approach that, with respect, might perhaps be thought more favourable to challengers than current High Court and Federal Court authority would call for, at least in relation to judicial review outside the context of s 75(v) of the Commonwealth Constitution.[44] In any event, I will, in the plaintiff’s favour, treat them as fully authoritative in the present context, noting, at the same time, that the Court of Appeal was principally concerned with the Minister’s exercise of a particular statutory power (the power under s 20(4) to self-exempt from notification requirements) that was not the same (either in scope or in the conditions for its exercise) as the statutory power of principal concern in the present case (the power to amend a planning scheme), albeit that the exempting power was also exercised in the present case. For completeness, I note that any differences between the authorities in relation to the approach required are of no moment in the present case, because the plaintiff has fallen very far short of establishing any of the relevant grounds.

The factual history[45]

[44]Compare Australian Broadcasting Tribunal v Bond (1990) 170 CLR 221 at 355-360; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2000 (2003) 198 ALR 59 at 61 [4]-[5] per Gleeson CJ, 72-73, [57]-[60] per McHugh and Gummow JJ; NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 at [29]; Aronson, Dyer and Groves, Judicial Review of Administrative Action, 4^th edition, 2008, at [4.420]-[4.425].

[45]Save where indicated to the contrary, the events described in this section of these reasons are believed to be common ground. See especially the amended joint chronology (of 35 pages) prepared by the parties and forwarded to the Court (after the conclusion of the hearing) under cover of a letter dated 12 September 2008.

A reservation for a proposed alignment of the Craigieburn By-Pass (“the By-Pass”) was created in 1975. It was situated near the Merri Creek, well to the west of the plaintiff’s land. It affected the planning schemes of both the City of Hume and the City of Whittlesea.

In 1995 the City of Whittlesea published a position statement for an area known as the Epping Bulge, a then largely undeveloped area generally to the west and north of the existing Epping urban area. The Epping Bulge included the plaintiff’s land at 410 Cooper Street, Epping. In relation to the Cooper Street area generally, the position statement called for the facilitation of employment-generating uses and the careful consideration of “new uses that demand long-term and large buffer distances or that prohibitively restrict future building and/or development”.[46] As time progressed, the City of Whittlesea came more and more to favour industrial development, and more and more to disfavour the extension of extractive industry, in the Cooper Street area.
[46]Court Book (CB) 7996.

In March 1996 the Victorian Minister for Conservation and Natural Resources announced Victoria’s “Clean and Green Policy”, which proposed a flora and fauna reserve to cover certain grasslands in the vicinity of the Merri Creek known as the Craigieburn Grasslands. The Craigieburn Grasslands lay some distance to the north-west of the plaintiff’s land. The Policy also undertook that the future options for the protection of an area called the Cooper Street Grasslands would be examined. The Cooper Street Grasslands lay to the south-west of the plaintiff’s land. The existing By-Pass reservation passed through both grasslands. The Clean and Green Policy proposed that, north of Cooper Street, the By-Pass reservation be moved to the eastern boundary of the Craigieburn Grasslands site.[47]
[47]CB 6595.

In April 1996 the second defendant, the Roads Corporation (“Vicroads”), requested the then Minister for Roads and Ports, Mr Geoff Craige, to seek the agreement of the then Minister for Planning and Local Government, Mr Maclellan, to a specified kind of planning process for the By-Pass. Vicroads acknowledged that planning scheme amendments would be required because of the proposed change of alignment but, on the basis that the proposed change was relatively minor,[48] Vicroads suggested that a statement under the Environmental Effects Act 1978 (Vic) would not be necessary.[49] Mr Craige wrote along those lines to Mr Maclellan on 2 May 1996. Mr Maclellan made no formal response until 27 March 1997. However relevant developments continued in the meantime.
[48]Vicroads told Minister Craige that it was not anticipated that the change in alignment would increase the cost of the project, which was then estimated at $160 million.
[49]CB 6603-6604.

On 17 June 1996 the City of Whittlesea published an issues paper calling for submissions on a draft strategy for land use in an area defined as the Cooper Street Precinct.[50] The plaintiff’s land was in the centre of the Cooper Street Precinct. On 15 July 1996 the plaintiff’s planning consultants, KLM (Mr Kraan), sent in a submission.[51] It extolled the virtues of extractive industry generally and of the extension of quarrying on the plaintiff’s land in future in particular. It said that the eastern section of the plaintiff’s property[52] had been the subject of extensive geological investigations in late 1995 to determine the nature and quality of the basalt rock resource within the property.[53] This had been done by Bell Cochrane and Associates, extractive industry consultants. The investigation work had included a conductivity survey, percussion drilling and diamond drilling. It had also included testing of drill core samples, plotting of drilling and test results and calculation of volumes of basalt and overburden materials. The results from the investigations (results which KLM described as “detailed”) had been documented in a report prepared by Bell Cochrane and Associates which was commercially sensitive. In summary, the investigations had revealed an “indicated mineral resource” in the central eastern area of some 15.1 million tonnes of basalt rock and an “inferred mineral resource” of 3.6 million tonnes of basalt in the far eastern section.[54]
[50]CB 2408-2444.
[51]CB 2447-2458.
[52]Which is the section principally in question in this case.
[53]CB 2450.
[54]CB 2451.

During this period (mid 1996), certain interest groups and local councils were calling for a By-Pass alignment that avoided the Craigieburn Grasslands altogether. Accordingly, in about August 1996, Mr Craige instructed Vicroads to investigate alignment options well away from the Craigieburn Grasslands, including alignments well to the east.[55]
[55]CB 6594-6595.

From that time on, Vicroads, in conjunction with the Department of Natural Resources and the Environment, investigated numerous suggested alignments for the By-Pass. The plaintiff was apparently following the process with considerable interest. On 11 December 1996 he wrote to Mr Craige urging that certain options which the plaintiff believed were then under consideration be discarded because of their impact on his existing or proposed quarrying activities.[56] Mr Craige spoke to the CEO of Vicroads, Mr Jordan, about the plaintiff’s concerns.[57] By a memorandum dated 13 January 1997 Mr Jordan informed the Minister that, contrary to the plaintiff’s fears, Vicroads was not considering an alignment that passed directly through or close by his existing quarrying operations, but that one of the options then under consideration (“Line C”) would pass along the eastern edge of the proposed new quarry area on the plaintiff’s land; and that Vicroads was continuing its work towards identifying a preferred option.[58] Mr Craige wrote to the plaintiff on 21 January 1997 noting the plaintiff’s concerns, putting him in touch with a senior Vicroads officer, Mr Bob Evans, and informing the plaintiff that the consideration of options was still progressing.[59]
[56]CB 6619-6624.
[57]CB 6596.
[58]CB 6630.
[59]CB 6631-6632.

Meanwhile, on 4 December 1996, Epping Development Park Pty Ltd, a company controlled by a businessman called Robert Scanlon, became the registered proprietor of the land at 360 Cooper Street (“the Scanlon land”), a square block of approximately 63 hectares then zoned farming, immediately to the east of the central eastern portion of the plaintiff’s land. The Scanlon land extended only about half-way towards O’Hern’s Road. It was bounded on the north by the far easterly block of the plaintiff’s (irregularly shaped) land.

The plaintiff had several meetings with Mr Bob Evans and other Vicroads officers, including Mr Gary Gray, in January and February 1997. The discussions were mainly about the strategic importance of quarries in the area, the extent and nature of the basalt rock resource on the plaintiff’s land, and the proposed planning process for the By-Pass.[60]
[60]CB 8170, 8171, 8183.

On 27 March 1997 Mr Maclellan wrote to Mr Craige informing him that no environmental effects statement would be required, but that he proposed to establish an Advisory Committee under s 151 of the P & E Act to examine the range of issues that arose in connection with the proposal.[61] The terms of reference for the committee were enclosed. They can usefully be summarised in the same way that, in effect, Mr Maclellan summarised them in his letter, as follows:
[61]CB 6634.

“•Clarification of the areas containing significant vegetation along the Merri Creek particularly for the Craigieburn and Cooper Street Grasslands.
•The advantages, disadvantages, costs and environmental impacts of the current reservation route; that presently proposed by Vicroads; and the alternative alignments raised in discussions between VicRoads and the interested parties (including consideration of upgrading the existing Hume Highway).
•The impact of the various alignments on likely future use of nearby land within the Merri Corridor.”

Mr Maclellan’s letter concluded:
“I would expect that the recommendations of the Advisory Committee will form the basis of an amendment to the Whittlesea and/or Hume Planning Scheme to incorporate the recommended route alignment and any necessary zonings related to the grassland areas or other identified features.”

Mr Craige agreed with Mr Maclellan’s proposed process.[62]

[62]CB 6597.

On 1 April 1997, presumably at the request of Mr Scanlon or his company, the City of Whittlesea resolved to exhibit proposed Planning Scheme Amendment L143. The amendment related specifically to the Scanlon land. The proposal was to rezone the land from General Farming B to Reserved General Industrial.[63] The City of Whittlesea notified the plaintiff of the proposal on 15 May 1997.[64]
[63]CB 2540.
[64]CB 2539-2545.

On the same day (15 May 1997) an advisory committee was established under s 151 of the P & E Act in accordance with Mr Maclellan’s proposal (the “First Advisory Committee” or “FAC”). It was comprised of Mrs Helen Gibson, Ms Jenny Love (no relation to the plaintiff) and Mr Geoff Sutherland.

By letter dated 19 June 1997,[65] Vicroads formally notified the plaintiff that the FAC had been established to consider the issues raised by the By-Pass proposal and that Vicroads was continuing to study various alternative routes. Though the letter does not specifically refer to this, it is common ground[66] that a plan showing five options (numbered 1-5) for the By-pass alignment was enclosed with the letter. Options 2 and 5 took an identical path between Cooper Street and O’Hern’s Road. That path was wholly on the Scanlon land until it reached the boundary with Mr Love’s far easterly block to the north of the Scanlon land. In the south (at Cooper Street), the line commenced fairly near the western side of the Scanlon land. It then curved away to the east until it crossed the northern boundary about halfway along. In substance, it divided the Scanlon land into two parts comprising about one-third and two-thirds of the block respectively. The map did not include any option traversing any part of the plaintiff’s land west of the Scanlon land. Apparently the line referred to as Line C in Mr Jordan’s abovementioned memorandum of 13 January 1997 (being a line which had run along the edge of the central eastern portion of the plaintiff’s land) had by this time (June 1997) disappeared.
[65]CB 2547-2550.
[66]See the relevant item in the joint chronology; and see CB 2550.

On 7 August 1997 a panel was appointed under Part 8 of the P & E Act to consider Amendment L143. The plaintiff made submissions to the panel opposing the amendment.[67] The submissions reveal a concern on the plaintiff’s part that if the use of the Scanlon land for industrial purposes were facilitated then the plaintiff’s prospects of being permitted to expand quarrying on his own land would be jeopardised. Little was said about the By-Pass.
[67]CB 2723-2747.

On 1 October 1997 the panel published its report.[68] It recommended that Amendment L143 be abandoned as premature.
[68]CB 2756-2815.

On 14 October 1997 the City of Whittlesea resolved not to accept the panel’s recommendation that L143 be abandoned. It referred the amendment to the Minister for Planning for approval.[69]
[69]CB 8505.

On 20 October 1997 Vicroads wrote to Mr Frank Masten, a consultant representing Mr Scanlon, responding to a complaint by him about the fact that Option 2 for the By-Pass traversed the Scanlon land.[70] Vicroads explained that it had not been aware, when it developed Option 2, of Mr Scanlon’s proposal for rezoning. It stated that should Option 2 be recommended by the FAC the alignment would be reviewed with a view to minimising the impact on the property, but with due consideration to other properties.
[70]CB 6,580-6,581.

In late October 1997 the plaintiff withdrew an application he had previously made to the Whittlesea Council for a permit for a joint quarry/cattle saleyards proposal, and lodged instead an application (no 704078) for a permit for (further) quarrying only.[71] The plaintiff notified Vicroads of this at the same time.[72] The application was supported by a major submission prepared by KLM Planning Consultants (Mr Kraan) in conjunction with Bell Cochrane and Associates.[73] A permit was sought to extract rock from the central eastern portion of the property only, being the portion said to have an “indicated mineral resource” of 15.1 million tonnes of basalt rock. Of this, some 7 million tonnes was said to be above the water table and about 8 million below. The far eastern block (with an “inferred mineral resource” of 3.6 million tonnes) was not included, in recognition that for certain specified reasons it was not likely to gain planning approval. The proposal was to dig, initially, on both sides of a gas transmission easement that roughly bisected the central eastern portion of the property,[74] and, at a considerably later stage, to go below the water table but only on the western side of the gas easement.[75] It was asserted in the submission that commercial extraction was intended to commence within 5-7 years, on the basis of discussions with the proposed quarry operator, Conundrum Holdings Pty Ltd.[76]
[71]CB 8587.
[72]CB 8611-8613.
[73]CB 2919-2988.
[74]See the map at CB 2924.
[75]CB 2934.
[76]CB 2933.

On 30 October 1997, presumably as a response to pressure from Mr Scanlon following Vicroads’ letter of 20 October 1997, a discussion took place between three Vicroads officers - Mr Bruno Aleksic, Mr Leo Stella and Mr Gary Gray – as to whether the alignment that passed through the Scanlon land should be modified at that stage[77] to limit the effect of the By-Pass on that land.[78] Documentary records of the discussion reveal that the Vicroads officers considered various factors both for and against locating the alignment on the Scanlon land, on the one hand, or on the Love land, on the other.[79] Among other things, there was a comparison of estimated compensation costs, with an indication that acquiring the plaintiff’s land might be more expensive.[80] On the other hand the records suggest that an alignment through Love’s land was thought to be more direct and in that sense a better alignment. In any event, the discussion apparently ended with a decision to leave things as they were for the moment.
[77]That is, before any recommendation of the FAC.
[78]CB 8618-8619 (handwritten notes, later typed up in agreed form for the court book).
[79]CB 8621.
[80]See also the Valuer-General’s memorandum of 22 October 1997 to Mr Gray of Vicroads at CB 8584.

On 1 November 1997 Vicroads issued an information bulletin showing Options 2 and 5 going more or less through the middle of the Scanlon land (as before).[81]
[81]CB 8650.

However, within 6 days (ie by 7 November 1997) Vicroads had verbally informed Mr Scanlon that the alignment of Options 2 and 5 would be moved to the western boundary of the Scanlon land.[82] This was confirmed in a letter from Mr Leo Stella of Vicroads to Mr Masten (for Scanlon) dated 12 November 1997.[83] The letter continued:

“This should assist by not severing the property as was proposed in the previous alignment. … I must stress that the revised alignment is only one of many options that will be put on public exhibition by the Advisory Committee. … Vicroads cannot give any undertaking that any of the route alignment options it has examined, and which are to be presented in the Planning Assessment Report, may not be amended, altered or deleted in the course of the planning process. This is a matter within the control of the Advisory Committee and the Minister for Planning and Local Government.”

[82]CB 8668.

[83]CB 8673.

At the same time, Mr Scanlon was pressing for the Minister’s approval of Amendment L143 for the rezoning of his land. He had strong support from the Whittlesea Council.[84] The Council’s support was redoubled after it became aware of Vicroads’ decision to move the alignment of Options 2 and 5 to the western boundary of Scanlon’s land.[85] However, Minister Maclellan’s initial response (by letter dated 14 November 1997 to the Council) was to say that he could not make a decision on L143 until the advice of the FAC on the By-Pass had been received.[86]
[84]CB 8672.
[85]CB 6308-6309.
[86]CB 5976-5977.

Mr Scanlon was undeterred. He repeatedly pressed Vicroads for finalised drawings of the amended alignment.[87] By letter dated 8 December 1997 Vicroads advised him that the change had been made, and enclosed a concept drawing showing the new alignment on the western boundary of the Scanlon land.[88]
[87]CB 8689-8691.
[88]CB 8697-8698.

Between 10 December 1997 and 9 February 1998 a series of events took place involving Mr Scanlon and his representatives, the Whittlesea Council, officers of Vicroads, officers of the Department of Infrastructure, Mr Craige and Mr Maclellan. The upshot of those events was that on 9 February 1998 a modified form of Amendment L143 was approved by Mr Maclellan. Amendment L143 rezoned the Scanlon land except for a strip 150 metres wide along the western boundary. The plaintiff now alleges that, in the course of the events in question, Mr Scanlon gave an undertaking that in return for a favourable rezoning decision he would accept compensation “on the then present day values, that is, reflective of General Farming zoning rather than industrial zoning”,[89] if ultimately it was decided to locate the By-Pass on the 150 metre wide strip. The plaintiff further alleges that the Minister’s approval of Amendment L143 was partly attributable to the alleged giving of that undertaking. He calls it “the Scanlon Undertaking”. At the hearing before this Court, the so-called Scanlon Undertaking was relied on very heavily by the plaintiff. This gave rise to certain hotly contested issues. I will refer to the matter of the Scanlon Undertaking in more detail when I come to deal with the issues to which it is relevant.
[89]ASOC para 13.

On 19 January 1998 the plaintiff, his then solicitors and his planning consultant, Mr Kraan (of KLM Planners), attended a meeting with Vicroads representatives, namely Evans, Aleksic, Gray and one George Mavroyeni. This meeting had been called by the plaintiff to ventilate his concerns about the moving of the alignment from near the middle of the Scanlon land to its western boundary, ie close to the eastern boundary of the plaintiff’s land. According to the minutes of the meeting,[90] the “impact on the proposed quarry due to the freeway being on the eastern boundary [sic] was raised and Mr Love indicated that this was likely to be severe”.[91] The minutes also record that the plaintiff expressed concern that the new alignment would affect Clonard. A separate note made by Mr Mavroyeni stated: “Main issue that Vicroads needs to note is the possible historic significance of the homestead on Alignment Nos 2-5 at Cooper Street”.[92]
[90]CB 8838-8839.
[91]CB 8838.
[92]CB 8842.

On the other hand, as the defendants point out, there was no mention of the homestead or its historic significance in the detailed submission that was made two months later (on 18 March 1998) by Mr Kraan on the plaintiff’s behalf to the panel that was then considering the new format (VPP) Whittlesea Planning Scheme. The submission concentrated on the proposition that extractive industry, as distinct from general industry, should be facilitated in the vicinity of the plaintiff’s land.[93]
[93]CB 3152-3171.

In any event, even if Map no 16 PAO as printed did not take Clonard, I am not satisfied that it was part of the first, abortive version of Amendment C23 as approved by Minister Thwaites. It was a single page document, without attachments. There is no clear evidence that it was part of the abortive amendment. The plaintiff submits that there is no evidence of any other map being produced for the purposes of Amendment C23 prior to the date of the abortive amendment (15 June 2001). However, despite all of the discovery that had occurred in this case, it seems that discovery had not been sought or given of the maps that formed part of the abortive amendment. Senior Counsel for the plaintiff unsuccessfully called for them at a late stage of the hearing.[452]
[452]Transcript, 1219-1221.

In any event, there is substantial evidence that any and all changes to the eastern boundary of the proposed public acquisition overlay in the relevant area were completed by 28 March 2001. In part, Mr Czirom’s evidence tended to support that view.[453] However I need not and do not adopt any concluded view on that aspect.
[453]See the submissions of Senior Counsel for the first defendant at transcript, 1169-1174.

I do not think that anything of significance turns on whether or not the abortive amendment would have taken Clonard. There is no evidence as to whether Minister Thwaites had a greater or a lesser appreciation of the details of the June 2001 maps as compared with the August 2001 maps.

I am not satisfied that Mr Woolner was responsible for the taking of Clonard to the exclusion of Minister Thwaites. There is no evidence to establish this as a fact. Mr Thwaites signed off on the entirety of Amendment C23. The presumption of regularity applies. I am not satisfied that there was any improper delegation.

Even if a conscious determination to exclude Clonard had been arrived at by Minister Thwaites in June 2001, it would, of course, have been open to him to change his mind. He would have been under no obligation to give Mr Love a further opportunity to be heard. Mr Love had not been apprised of the abortive Amendment. He had not been lulled into any false sense of security. He had already had a full opportunity to put his case. I do not agree with the plaintiff’s submission that any decision to include Clonard in Amendment C23 would have been surprising. It is true that Vicroads had initially cautioned against installing a full diamond interchange at O’Herns Road and had submitted that any decision about an interchange in the vicinity of O’Herns Road should be left for a later occasion. But the FAC had taken a different position. It recommended that provision should be made immediately for a future interchange “in the vicinity of” O’Herns Road. The SAC maintained its support for that approach. Indeed, on my reading of the FAC Report and the SAC Report, the Committees remained open to the possibility of making provision for an interchange at O’Hern’s Road, despite VicRoads’ concerns. (Of course, that did later occur as part of the C44 process, by which time VicRoads’ concerns had been overcome.) The SAC observed that Vicroads “should identify with certainty the future location for such an interchange as part of its detailed planning for the freeway”. Its formal recommendation was:

“VicRoads should identify with certainty the future location for an interchange in the vicinity of O’Herns Road. Provision for this should be included in the amendment to the Whittlesea Planning Scheme.”

It is known from the emails of 5 June 2001 that, by then, Minister Batchelor wanted “the O’Hearns [sic] Road full diamond design” from Vicroads as a priority, and was keen for the amendment to be approved with the full interchange in and not to do it as two separate amendments. In the end, senior counsel for the plaintiff seemed to acknowledge that this was a likely explanation for any change that might have occurred as a result of Mr Woolner’s hand annotations. The mere fact that Vicroads had previously had concerns about doing what was asked for is hardly enough to show that the taking of Clonard was “gratuitous” or unreasonable.

I disagree with the plaintiff’s submissions about the construction of s 42 of the Transport Act 1983. In my view, s 42 does not erect a test of absolute necessity. Nor does it erect an objective test in the sense that the courts may determine for themselves whether particular land which the Corporation seeks to acquire “is or may be required” by the Corporation. The question is subjective, not objective. What “is or may be required by the Corporation for or in connexion with the performance of its functions or the achievement of its objectives” is a matter for the Corporation, subject only to the normal supervisory jurisdiction of the Supreme Court.

A comparable provision, namely s 161 of the Land Administration Act 1997 (WA), was recently interpreted in a corresponding fashion by the Court of Appeal (WA) in Mandurah Enterprises Pty Ltd v Western Australian Planning Commission.[454] That section provided, so far as relevant, that whenever the Crown was authorised by statute to undertake, construct or provide any public work “and the use of any land or interest in land is required for the purposes of the work, then … any interest in the land held by a person other than the Crown may be taken”. The provision did not speak of land being required “by” anyone in particular. Despite this, McLure JA said:[455]

“The determination of what is ‘required’ does not involve an objective test to be determined by this court. The PTA has the statutory power to make all relevant decisions in respect of any railway by a special Act. Whether the use of land is ‘required’ is to be determined by reference to valid and binding exercises of discretionary power made by the PTA under the Public Works Act.”

[454][2008] WASCA 211.

[455]At [61]. See also at [136]-[137] per Buss JA. See also the cases cited in each place respectively.

It was entirely open to Minister Thwaites to proceed on the basis that the By-Pass Excision land, including Clonard, may be required by the Roads Corporation for or in connection with the performance of its functions or the achievement of its objects. Of course, a reservation of land normally precedes any acquisition by the Roads Corporation. So it may be more correct to say that s 42 of the Transport Act 1983 does not impinge on the discretion of the planning authorities at all. In any event, it was certainly no barrier to Amendment C23.

If the fact that Clonard would be demolished as a result of Amendment C23 was a mandatory consideration for Minister Thwaites or for any of the other relevant decision-makers (as I will assume, but without deciding) then I am not satisfied that any of them did not take it into account. Nor am I satisfied that it was a fact that tended to indicate that any of the decisions in question was Wednesbury unreasonable or otherwise invalid. The evidence which is referred to above about Mr Love’s largely unsuccessful attempts to gain heritage protection for Clonard after February 2002 was put before me without objection. Ultimately, however, the plaintiff’s counsel submitted that, because it post-dated the acquisition, it was irrelevant to an assessment of the validity of the relevant decision-making. I have proceeded on that basis.

It follows from the above that I am not satisfied that Minister Thwaites failed to take into account any (mandatory) relevant considerations in connection with Amendment C23.

Amendment C23: Absence or excess of power

In view of the above, there is no basis for a finding that Amendment C23 was made in excess of, or in the absence of, power.

Amendment C23: manifest unreasonableness

Again, what I have said above indicates sufficiently that I am by no means satisfied that Minister Thwaites’ decision was manifestly unreasonable.

Amendment C23: delegation: personal preparation

I have already rejected this ground.

Amendment C23: procedural fairness

So far as Clonard is concerned, I have already rejected this ground.

The plaintiff claims that he was entitled to but was denied a fair hearing in relation to the imposition of Environment Significance Overlay ESO3 on his land as a result of Amendment C23.[456]
[456]It also affected other land along the Merri Creek environs.

I reject this argument. The Minister had exempted himself under s 20(4) of the P & E Act from the usual notice and hearing requirements of the Act in respect of planning amendments. There was no room left, at least in the present case, for the operation of any common law natural justice principle that might otherwise have obliged the Minister to give notice to Mr Love about the possibility that an ESO might be applied to part of his land. The plaintiff raised no argument to the contrary.

In any event, the possibility of extending the existing ESO was at least indirectly flagged in the terms of reference for the FAC and the SAC.

I note that the ESO has had minimal effects on the Love land. The ESO is principally designed to protect, and to preserve views of, the Merri Creek area to the west of the plaintiff’s land. The plaintiff was not even aware of its existence until he happened to discover it by chance in 2005. He is free, of course, to make any representations he sees fit to the Whittlesea Council or the Minister with a view to the revocation or amendment of the ESO.

There is no substance in this complaint. It is rejected.

Transport Minister’s approval of the acquisition

In effect I have already dealt with all of the matters raised in relation to Minister Batchelor’s decision-making. For the same reasons as before, I reject the attack on his approval of the acquisition of the By-Pass Excision Land.

Vicroads’ acquisition of the plaintiff’s land

The matters raised in items 3.1-3.6 (inclusive) and 3.10-3.15 (inclusive) raise nothing additional. I reject these grounds for the same reasons as before.

Formal requirements for the Notice of Intention to Acquire

In pursuance of ss 6 and 8(1) of the Land Acquisition and Compensation Act 1986 (the LAC Act) and regulation 7 of the 1998 Regulations thereunder, on or about 6 December 2001 the Roads Corporation prepared and sent to Mr Love a document headed “Form 1: Notice of Intention to Acquire” dated that day.

Mr Love contends that the document did not comply with the requirements of the provisions to which I have referred. He further contends that the notice was therefore invalid and, that, in consequence, all steps taken thereafter involving the acquisition of the By Pass Excision Land were invalid and ineffective in law.

I am not persuaded that the notice of intention to acquire did not comply with the requirements of the legislation.

Regulation 7 provides that a notice of intention to acquire an interest in land under section 6 (of the LAC Act) “must be in the form of Form 1 in Schedule 2 (of the LAC Act)”. There is no suggestion that the notice failed to comply with any other legislative provision. The only point raised is that it was allegedly not “in the form of Form 1 in Schedule 2”. Form 1 is drafted in a flexible way so as to be suitable for use by any kind of acquiring authority.

The notice purported to be in the form of Form 1. It followed the structure and order of Form 1. The plaintiff acknowledges that it clearly identified the person whose land was to be acquired, namely Mr Love, and that it accurately specified the metes and bounds of the land to be acquired (being the By Pass Excision Land) and the name of the proposed acquiring authority, namely “Roads Corporation (VicRoads)”. The only part of the prescribed form (Form 1) with which the notice allegedly did not correspond sufficiently reads as follows:

“The [name of Authority] thinks that the land is suitable for [set out details of purpose for which land is to be acquired and reasons why the Authority thinks this is so].”

The defendants rely principally on the following entries in the notice served as constituting compliance with this part of the form:

“VicRoads thinks that the land is suitable for the construction of the Craigieburn Bypass–Hume Link.
The land described is reserved for a public purpose under the Whittlesea City Planning Scheme.
At the present time it is expected that VicRoads may require possession of the land on approximately 1 May 2002. This date may change.”

A statement pursuant to s 8(2) of the LAC Act, regulation 10 and Form 4 of Schedule 2 to the Regulations, setting out Mr Love’s principal rights and obligations in relation to the notice of intention to acquire, accompanied the notice. It was in proper form.

In my view it is proper to take into account the whole of the notice, and in particular the reference to the reservation of the land under the Whittlesea Planning Scheme, notwithstanding that the standard form makes separate provision for the Authority to state whether or not the land is reserved for a public purpose under a planning scheme (and to identify the scheme). In the present case, in all the circumstances, the statement that the land was reserved under the Whittlesea Planning Scheme was pregnant with information, especially for a person in the position of Mr Love. In my view the notice as a whole told Mr Love clearly enough that the purpose of the proposed acquisition of the land was to enable the Roads Corporation to put a road on it; and it also told him that the Roads Corporation thought that the land was suitable for that purpose because the land was suitable for, and indeed reserved for, the proposed Craigieburn Bypass-Hume Link (with which, of course, Mr Love was very familiar).

In my view the notice complied sufficiently with the legislative requirements.

There is no need for me to deal with the opposing submissions made by the parties concerning the consequences that might have followed if I had been of a different view.[457]

Amendment C46: the Road Zone

[457]The parties referred to SS Constructions Pty Limited v Ventura Motors Pty Limited [1964] VR 229; Accident Compensation Commission v Detar [1989] VR 931 at 938; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Hume Doors & Timber (Qld) Pty Ltd v Logan City Council [1999] QSC 350 at [17]; and ETSA Utilities Pty Ltd v Corporation of the City of Unley [2000] SASC 74 at [10]-[15].

The claims against Minister Delahunty concerning her approval in October-December 2002 of Amendment C46 (introducing the Road Zone) are almost entirely repetitious of the claims against Ministers Thwaites and Batchelor which I have rejected. To that extent the plaintiff’s claims in relation to Amendment C46 are likewise rejected.

The plaintiff’s counsel did not address the claims against Minister Delahunty orally at all. He advanced nothing to support the proposition in the written outline that she “wished” industrial development to take place on the 150 metre wide strip of the Scanlon land. Accordingly I take it that that proposition is, in truth, no different from the allegations about industrial use of the Scanlon land with which I have already dealt. The ground is rejected accordingly.

There remains the proposition that Minister Delahunty did not take into account the “Second Advisory Committee Report Inconsistency”. This is defined in the ASOC,[458] in effect, as the “inconsistency” between the reasons given by the FAC for rejecting variations A and B of Options 2/5 and the subsequent recommendation of the SAC in favour of Option Y (ahead of Option 5). As is apparent from what I have already said, I do not consider that there was any or any significant inconsistency of the kind alleged. Mr Love made little point before the SAC about the distinction between the western boundary of the Scanlon land and the eastern boundary of his own land. In the circumstances there was no occasion for the SAC to make any sharp distinction. That sufficiently explains the so-called inconsistency, at least for the purposes of this case, being a case confined by the administrative law principles to which I have repeatedly referred.
[458]Para 53.

The attack on Amendment C46 is rejected.

Amendment C62: The rezoning of the strip of Scanlon land

The claims against Minister Delahunty in relation to Amendment C62 fail for the same reasons.

Invalidity consequences

No administrative law error at all having been established, there is no need to consider whether any or what relevant steps might have been rendered invalid by any such error.

Indefeasibility of title

In response to the Roads Corporation’s submission, that, in any event, its title to the By-Pass Excision Land is indefeasible, the plaintiff’s counsel said next to nothing. He merely asserted that the “in personam” exception would apply, without any real supporting argument. I need not and do not decide the point, but, as presently advised, I am unable to see any answer to the Roads Corporation’s submissions.[459] That may, as the plaintiff submits, leave open the possibility of damages for negligence, if any case of negligence could be made out.
[459]See especially City of Canada Bay Council v Bonaccorso [2007] NSWCA 351 at [43]-[45], [57]-[63] and [88].

Estoppel, laches, discretion

Again, strictly speaking, I need not address estoppel, laches or the discretion to refuse relief.

However I would observe that it is almost fanciful to think that, even if some administrative law error or errors had been established, this Court would have made orders declaring the acquisition invalid at this late stage. Any such orders would either have been moot or would have affected the interests of many parties not joined to this proceeding, with the added risk of enormous and unwarranted public inconvenience. It is not conceivable that, on remittal, a decision to move the By-Pass would or could sensibly be made now.

Trespass and nuisance

On my findings, the trespass and nuisance claims do not arise.

Negligence

The plaintiff having tied his negligence claims to success in the administrative law case, I need not address the negligence claims.

However I note in passing the decision of the New South Wales Court of Appeal in Precision Products (NSW) Pty Limited v Hawkesbury City Council[460] given since judgment was reserved in this matter. In comparable circumstances, the Court denied the existence of any duty of care. Allsop P (with whom Beazley J and McColl JA agreed) said:[461]

“118 It is unnecessary to repeat the considerations discussed by the Chief Justice in Paige at the above pages, which I gratefully and respectfully adopt. The duty contended for here amounts, in substance, to the assertion of a compensatory claim for administrative error: cf Dunlop v Woollahra Municipal Council [1982] AC 158; Takaro Properties Limited v Rowling [1986] 1 NZLR 22; and Rowling v Takaro Properties Limited [1988] AC 473.
119 The lack of coherence between administrative law doctrines and the imposition of monetary compensation for the flawed or failed exercise of governmental power is illustrated later in these reasons in the discussion of breach of the posited duty. As will be seen, if standards of administration are to be regulated and enforced by recourse to the recovery of damages at common law, the courts must necessarily become involved, not just in the constitutional role of ensuring legality, but also in laying down standards of administrative conduct by reference to a standard of reasonable care. This standard setting and its enforcement by the courts would be in relation to the exercise of power of another branch of government and in circumstances where there exist machinery and techniques for the setting and maintenance of good administration and good government. The courts, of course, play a central role in that machinery in supervising the legality of the activity of government. To infuse common law duties and the recovery of damages in such a field as the issuing of notices under s 91 where governmental (EPA supervision) and legal (judicial review) controls already exist would introduce an undesirable incompatibility and lack of coherence to the regime of environmental protection.

120 The above is not to deny the continued force of Caledonian Collieries v Speirs and like cases. When a Council exercises a power to build a structure, approve a plan, give permission for an act or otherwise engage in activity, it may well be required (on pain of liability in damages) to exercise care in relation to someone who may be affected by the power’s exercise. What tends to strike at the coherence of administrative law here is the positing of a duty to exercise reasonable care not to make a flawed decision by, for instance, failing to give procedural fairness or failing to confine the power within statutory limits. Such a duty, as contended for here, would tend to open public authorities to the spectre of compensation for flawed decision making, in circumstances where the validity of the exercise of power can be tested and resolved by judicial review, and where standards of competence and skill are well able to be dealt with by an appropriate regime of governmental administration.”

[460][2008] NSWCA 278 (31 October 2008).

[461]At [118]-[120].

Further, as at presently advised, I consider that the plaintiff would have had the greatest difficulty in showing that any of the relevant persons or bodies made any negligent or careless mistake at all, or that the same caused any compensable loss or damage to him.

Conclusion

The proceeding must be dismissed. I will hear the parties on the question of costs.

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CERTIFICATE

I certify that this and the 146 preceding pages are a true copy of the reasons for Judgment of Cavanough J of the Supreme Court of Victoria delivered on 23 June 2009, as revised on 3 December 2009.
DATED this third day of December 2009.

Associate