Lower Our Tracks Inc v Minister for Planning
[2016] VSC 803
•20 December 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION AND PLANNING LIST
S CI 2016 03542
| LOWER OUR TRACKS INC | Plaintiff |
| v | |
| MINISTER FOR PLANNING | Defendant |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13-14 October 2016 – Final written submissions 28 October 2016 |
DATE OF JUDGMENT: | 20 December 2016 |
CASE MAY BE CITED AS: | Lower Our Tracks Inc v Minister for Planning |
MEDIUM NEUTRAL CITATION: | [2016] VSC 803 |
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JUDICIAL REVIEW – Planning – Amendment to planning scheme – Incorporated document – Removal of level crossings – Elevated rail design – Minister’s decision to exempt himself from statutory exhibition and notice requirements – Whether decision unreasonable or irrational – Whether decision made for an improper purpose – Whether Minister’s discretion fettered – Planning and Environment Act 1987 ss 17, 18, 19, 20(4).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P B Hayes with Mr P T Kelly | Mitry Lawyers |
| For the Defendant | Mr D J Batt QC with Mr I G Munt | Victorian Government Solicitors Office |
HIS HONOUR:
Introduction
The plaintiff seeks judicial review of the exercise of a discretion by the Minister for Planning, Mr Richard Wynne MP (‘the Minister’), under the Planning and Environment Act 1987 (‘the Act’) to exempt himself from the exhibition and notice requirements that relate to planning amendments. The amendments to the planning scheme facilitate a project which will remove nine level crossings between Caulfield and Dandenong railway stations.
The plaintiff, Lower Our Tracks Inc (‘LOTI’), was formed to oppose the construction of an elevated railway as the design for the level crossings removal, which is often referred to as ‘SkyRail’. The project incorporates four sections of elevated rail that once completed will stretch in total for 8 kilometres.
During the 2014 State election campaign, the present Government, when in Opposition, promised to remove 50 level crossings to improve metropolitan public transport. In 2015, the Level Crossing Removal Authority (‘LXRA’) was established as an administrative office within the Department of Economic Development, Jobs, Transport and Resources charged with overseeing the removal of the 50 level crossings. Although called an ‘Authority’, it was not said at the hearing to have been conferred with any legislative authority. During 2015 and 2016, LXRA accepted design and construction proposals eventually choosing a design that incorporated sections of elevated rail.
Section 20(4) of the Act gives a discretionary power to the Minister to exempt him or herself from the exhibition and notice requirements contained in ss 17-19 of the Act, for an amendment to a planning scheme. The lawful exercise of that power required the Minister to consider that either compliance with any of those requirements was not warranted or that the interests of Victoria or any part of Victoria made such an exemption appropriate. On 25 May 2016, the Minister decided to exercise the power provided by s 20(4) and it is that decision that falls for judicial review.
The subject amendment in this case was titled GC37, which was an amendment to nine planning schemes affecting nine municipalities, for instance the Glen Eira Planning Scheme.[1] The amendments were not specifically directed to the construction of elevated rail but concerned works near and incidental to the railway.
[1]The nine planning schemes were: the Cardinia Planning Scheme, the Casey Planning Scheme, the Glen Eira Planning Scheme, the Greater Dandenong Planning Scheme, the Kingston Planning Scheme, the Melbourne Planning Scheme, the Monash Planning Scheme, the Stonnington Planning Scheme and the Yarra Planning Scheme.
Summary of judgment
LOTI challenged the Minister’s exercise of discretion under s 20(4) of the Act on three grounds: unreasonableness, irrationality or illogicality; improper purpose; and fettering of discretion. The second and third grounds were based on the contention that the Government had switched from an under-rail design to an elevated rail design much earlier than its announcement on 7 February 2016, but had not announced that switch in policy in order to avoid political controversy. LOTI contended that the Minister’s decision under s 20(4) to exempt himself from the notification requirements of the Act was unreasonable, irrational and illogical and made to give effect to the elevated rail policy decision.
In judicial review proceedings, the Court reviews the legality of decisions made by the executive branch of the state, in this case, the Minister. It does not, and has no constitutional authority to, determine whether the decision is the fairest or best possible. That task is for the Government and the Parliament, who are subject to review by the community at elections. That is the structure of our democracy.
The Minister’s exemption decision was made more than three and a half months after the announcement of the elevated rail design. It was made after the Department presented an extensive brief to the Minister, including a 134 page consultation document and letters from the Councils of affected municipalities. The Minister decided that both of the preconditions contained in s 20(4) were present, although either would have enlivened the discretion. The Minister’s decision concerned whether the exhibition and notification requirements of the planning amendment, otherwise required by the Act, should occur and he decided that they should not. He did not decide whether an elevated rail design should be adopted as part of the level crossing removals. There is no substantial evidence that the Minister acted with an improper purpose or fettered the discretion that s 20(4) conferred on him. The evidence of the two public servants involved in the tender process and the exemption decision did not reveal any improper conduct or purpose by the Minister. The Minister addressed the preconditions contained in s 20(4) and gave reasons as to why he considered that they existed. Those reasons do not reveal the errors which LOTI alleged. I have considered, and taken into account, the concern that the persons who made affidavits relied on by LOTI, have expressed about the effect on them of elevated rail and their dissatisfaction with the process of consultation that LXRA undertook. They are significant matters. However, in this case, the Minister was not required by law to undertake any consultation and, therefore, inadequacy of consultation does not establish a legal error which would entitle the Court to set aside his decision. LOTI did not establish its grounds on the evidence presented to the Court. The proceeding is therefore dismissed.
The scope of judicial review
Justice Brennan explained the role of the Court on a judicial review application as follows:
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 power. 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 they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.[2]
[2]Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35-36.
Chief Justice Warren, in a case where the Minister’s exercise of discretion under s 20(4) of the Act was also challenged, described the role of the Court in the following terms:
The distinction between a review on the merits and a review of the legality of a decision is fundamental to administrative law. The power to engage in administrative action resides with the repository of the relevant power. The court’s jurisdiction centres on determining whether the decision was taken without power, ‘the Court has no jurisdiction simply to cure administrative injustice or error. Establishing Wednesbury unreasonableness requires a ‘major step further’ than simply establishing an error in reasoning. This is particularly so ‘where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste’. That is, where the decision-maker is required to hold a subjective opinion as the minister is required to hold under s 20(4) of the Act. The section requires that ‘the Minister considers that compliance with any of …[the notice provisions] …is not warranted or that the interests of any part of Victoria make such an exemption appropriate. The wording of the section confers a broad discretionary power on the minister.[3] (citations omitted)
[3]East Melbourne Group Inc v Minister for Planning (2008) 23 VR 605, 633 [112] (‘East Melbourne Case’) per Warren CJ who dissented in the result, but not on any point affecting the relevance of the passage quoted.
Because of the ambit of judicial review, the Court will ordinarily not take into account information that the decision-maker did not have. However, there are exceptions to that rule, depending on the grounds of review that are relied on, and I will return to their application to this case later in the judgment.
LOTI relied on three grounds of judicial review:[4]
[4]In its further amended originating motion.
1. The Decision was so unreasonable that no reasonable decision maker could have arrived at it.
Particulars
The Minister for Planning in making his decision considered that the exemption of amendment GC-37 from the usual notice requirements under the Planning and Environment Act 1987 would avoid unnecessary duplication of process, because consultation on the project was undertaken with potentially affected parties: Reasons at [27]. In fact, there would no duplication of process at all because:
(i)there was no consultation of the community with regards to the proposed amendment GC-37;
(ii)insofar as there was any consultation of the community regarding the plans for an elevated railway during 8 February to 18 March 2016, that process :
(A)was conducted in circumstances where the project plans and the proposed amendment GC-37 were not disclosed to the public;
(B)the consultation process was not conducted by an independent panel;
(C)the consultation process was not conducted with public hearings;
(D)the consultation process was conducted with a lack of transparency.
It was therefore irrational and illogical for the Minister for Planning to consider that the notice requirements and panel hearings required under the Planning and Environment Act 1987 would be a duplication of the consultation process undertaken between 8 February and 18 March 2016.
It was further irrational and illogical for the Minister to assert that the Decision was in the interests of Victoria.
It was further irrational and illogical for the Minister to assert that the Decision was in the interests of Victoria solely by reference to the merits of the project and without any adequate justification.
2. the Decision was made for an improper and ulterior purpose; and further, or in the alternative;
3. the Decision was made in circumstances where the Minster’s discretion was fettered by the fact that the Decision was part of the State Government’s plan to introduce a controversial elevated railway with a minimum of community consultation and objection, and the Minister for Planning gave no proper, genuine and realistic consideration of the question whether it was appropriate to dispense with the requirements of ss 17-18 of the Planning and Environment Act 1987.
Particulars
The present State Government won office at the 29 November 2014 State Election on a principal election promise of removing 50 level crossings. After winning office, the State Government secretly changed the plan to an elevated railway knowing that such a change of plan would cause substantial political criticism and electoral damage. The change to an elevated railway was conducted under a strict policy of secrecy which was intended to keep the community in ignorance of the change to an elevated railway. This included the decision to have the Minister for Planning intervene in amending the relevant planning schemes by use of amendment GC-37 and avoid community objection and public panel hearings by exempting himself from the requirements of ss 17-19 of the Planning and Environment Act 1987.
The Act
LOTI’s application challenged the exercise of a discretion conferred by s 20(4) of the Act and that provision is to be understood by reference to other sections of the Act. The purposes of the Act include 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’.[5] The Act states the objectives of the planning framework as including:
To establish a clear procedure for amending planning schemes, with appropriate public participation in decision making.[6]
[5]Planning and Environment Act 1987 (Vic), s 1.
[6]Planning and Environment Act 1987 (Vic), s 4(2)(h).
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.[7]
[7]Planning and Environment Act 1987 (Vic), s 6(1).
Part 3 of the Act deals with the amendment of planning schemes. Division 1 of Part 3 is titled ‘exhibition and notice of amendment’ and sets out particular notice requirements that a planning authority must abide by when considering amending a planning scheme. Pursuant to s 8(2) of the Act, the Minister is a planning authority.
The duties and powers of a planning authority are set out in s 12 of the Act and include preparing amendments to a planning scheme for which it is a planning authority.[8] Section 12(2) provides:
[8]Planning and Environment Act 1987 (Vic), s 12(1)(d).
(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 Victoria 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
(b)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) must take into account its social effects and economic effects.[9]
[9]Planning and Environment Act 1987 (Vic), s 12(2).
The exhibition and notification requirements for the amendment of planning schemes are set out in ss 17-19 of the Act and it is those obligations from which s 20(4) permits the Minister to exempt himself. Had the Minister not exercised the discretion given under s 20(4), he would have been obliged to comply with a number of requirements of the Act for the proper invitation, collection and treatment of public submissions on the proposed planning scheme amendment. Sections 17 to 19 enable public submissions about an amendment. Under s 17 copies of proposed amendments must be given to various public agencies and under s 18 the proposed amendment must be made available for inspection at the planning authority’s offices to any person. Section 19 prescribes public notice requirements, including requirements that people who may be materially affected by the amendment be given notice.
Sections 21, 22 and 23 provide for submissions about the amendment and when the authority considers a submission which requests a change to the amendment, the planning authority must either change it, abandon it, or refer the submission to a panel appointed under Part 8.[10] Panels are bound by the rules of natural justice.[11] The authority can also refer to the panel submissions which do not require a change to the amendment.[12] The panel must consider all submissions referred to it and give a reasonable opportunity to be heard to any person who has made a submission referred to it, the planning authority, any responsible authority or municipal council concerned, any person who asked the planning authority to prepare the amendment and any person whom the Minister or the planning authority direct the panel to hear.[13] The panel must report its findings to the planning authority and subject to some exceptions, may make any recommendation it thinks fit and its report may be made available to the public.[14] The planning authority must consider the panel’s report before deciding whether or not to adopt the amendment and it must tell the Minister in writing if it decides to abandon an amendment or part of an amendment.[15] After complying with these provisions, the planning authority may adopt the amendment or part thereof with or without changes.[16]
[10]Planning and Environment Act 1987 (Vic), s 23(1).
[11]Planning and Environment Act 1987 (Vic), s 161(1)(b).
[12]Planning and Environment Act 1987 (Vic), s 23(2).
[13]Planning and Environment Act 1987 (Vic), s 24.
[14]Planning and Environment Act 1987 (Vic), ss 25 and 26.
[15]Planning and Environment Act 1987 (Vic), ss 27 and 28.
[16]Planning and Environment Act 1987 (Vic), s 29(1).
Planning authorities other than the Minister must submit an adopted amendment to the Minister together with the prescribed information.[17] The Minister may approve an amendment or part of an amendment that he has prepared or that has been submitted to him with or without changes and subject to any conditions the Minister wishes to impose, or refuse to approve the amendment or part of the amendment.[18]
[17]Planning and Environment Act 1987 (Vic), s 31(1).
[18]Planning and Environment Act 1987 (Vic), s 35(1).
Section 20(1)-(3) deals with an application by a planning authority to the Minister to exempt it from any of the requirements of s 19 or the regulations in respect of the amendment.
Sections 20(4) and (5) of the Act are the mechanisms by which the Minister may exempt him or herself from any of the ss 17-19 requirements. It adopts the same criteria that the Minister must apply in determining applications by planning authorities for exemption from the requirement to give notice of proposed planning amendments. Sections 20(4) and (5) provide:
20 Exemption from giving notice
…
(4)The Minister may exempt himself or herself from any of the requirements of sections 17, 18 and 19 and the regulations in respect of an amendment which the Minister prepares, if the Minister considers that compliance with any of those requirements is not warranted or that the interests of Victoria or any part of Victoria make such an exemption appropriate.
(5)The Minister may consult with the responsible authority or any other person before exercising the powers under subsection (2) or (4).
Section 20(4) provides two independent bases upon which the Minister may exercise the discretion. A valid decision under s 20(4) need only be grounded on one of those bases: either that the Minister considers that compliance ‘with any of those requirements’ is not warranted, or, that the Minister considers that exemption is appropriate in the interests of Victoria or any part of Victoria, or both as the case may be.[19]
[19]East Melbourne Case (2008) 23 VR 605, 643 [162] (Warren CJ).
Having chosen to exercise the power under s 20(4) to exempt him or herself from the any of the ss 17-19 requirements, the Minister must lay before each House of Parliament a ‘notice of approval’ that affords an opportunity to Parliament to consider and revoke any proposed amendment. This is required by s 38 which provides:
38 Parliament may revoke an amendment
(1)The Minister must cause a notice in the prescribed form of the approval of every amendment to be laid before each House of the Parliament within 10 sitting days after it is approved.
(1AAA)A notice under subsection (1) must state whether the Minister prepared the amendment under section 20A.
(1A)A notice under subsection (1) must state whether the Minister has exempted the planning authority or himself or herself from any of the requirements of section 17, 18 or 19 or the regulations.
(1B)If an exemption referred to in subsection (1A) has been given, the notice must—
(a) state the nature of the exemption; and
(b) state the notice, if any, given of the amendment; and
(c)state whether the Minister consulted the responsible authority before giving the exemption; and
(d)if the responsible authority was consulted, include a summary of the authority's recommendations (if any) in relation to the exemption.
(2)An amendment may be revoked wholly or in part by a resolution passed by either House of the Parliament within 10 sitting days after the notice of approval of the amendment is laid before that House.
Amendment GC37
The amendment in question replaced a similar amendment GC15 made by the previous Government affecting land along the Cranbourne-Pakenham rail corridor.
Under s 6(2)(j) of the Act, an ‘incorporated document’ was prepared that related to the use, development and protection of land across the entire project area. This document was inserted into each of the nine planning schemes.
A copy of the incorporated document was provided to the Minister on 24 May 2016. It describes the scope and purpose of the Project and the means by which Amendment GC37 facilitated the Project’s works. Relevant sections of the incorporated document are reproduced below:
1.0 INTRODUCTION
This document is an incorporated document in the Cardinia, Casey, Glen Eira, Greater Dandenong, Kinston, Melbourne, Monash, Stonnington, Yarra Planning Schemes (the planning schemes) pursuant to section 6(2)(i) of the Planning and Environment Act 1987.
The land identified in Clause 3.0 of this document may be used and developed in accordance with the specific control in Clause 4.0 of this document.
The control in this document prevails over any contrary or inconsistent provision in the planning schemes.
2.0 PURPOSE
The purpose of the control in this document is to allow the use and development of land for the purposes of the Caulfield Dandenong Rail Upgrade Project (the project).
The project includes:
a)The removal of nine level crossings along the Caulfield Dandenong line between Caulfield and Dandenong at:
·Grange Road, Carnegie
·Koornang Road, Carnegie
·Murrumbeena Road, Murrumbeena
·Poath Road, Murrumbeena,
·Clayton Road, Clayton
·Centre Road, Clayton
·Corrigan Road Noble Park
·Heatherton Road, Noble Park
·Chandler Road, Noble Park.
b) The redevelopment of five railway stations at:
·Carnegie
·Murrumbeena
·Hughesdale
·Clayton
·Noble Park.
c) Modifications to and the refurbishment of existing railway stations.
d)The development of newly created open space areas and associated community facilities.
e) The relocation and upgrade of telecommunications infrastructure.
f)Road and railway works, and associated infrastructure, including (but not limited to) partial duplication of tracks between Dandenong and Cranbourne, new pedestrian access, shared use paths, landscaping, new road, rail and bus infrastructure, and public transport facilities, new, relocated and upgraded substations and tie stations, overhead infrastructure, services relocation, car parking, upgrades to power systems, communications and signalling infrastructure between Southern Cross Railway Station (including the city loop) and Pakenham and Cranbourne railway stations, and engineering or foundation works required to enable future transit oriented development.
3.0 LAND
The control in this document applies to the land required for the project as shown in the project area maps forming part of this document.
4.0 CONTROL
4.1 EXEMPTION FROM PLANNING SCHEME REQUIREMENTS
Despite any provision to the contrary or any inconsistent provision in the planning schemes, no planning permit is required for, and no planning provision in the planning schemes operates to prohibit or restrict, the use or development of land or the creation, variation or removal of easements for the purposes of the project.
The project includes, but is not limited to, the following:
·A railway including railway tracks and associated communications, signalling, and electrical infrastructure.
·Road and railway works, including works to facilitate the grade separation of rail and road infrastructure and provide new road, rail and bus infrastructure, and public transport facilities.
·Railway stations, including redevelopment of railway stations and modifications to and refurbishment of existing railway stations as well as the selling of food, drink and other convenience goods and services.
·Power upgrades, including new, relocated and upgraded substations and tie stations and overhead infrastructure.
·Creating or altering access to roads, including roads in a Road Zone, Category 1.
·Creating, varying or removing an easement to enable the use or development of land for the purposes of the project.
·Car parking, bicycle facilities and loading/unloading facilities.
·Buildings and works associated with the construction of pedestrian access, shared use paths and watercourse crossings.
·Newly created open space areas and associated community facilities.
·Engineering or foundation works required to enable future transit oriented development.
Ancillary activities including, but not limited to:
·Creating and using lay down areas for construction purposes.
·Stockpiling of excavation material.
·Constructing and using temporary site workshops and storage, administration and amenities buildings.
·Removing, destroying and lopping trees and removing vegetation, including native vegetation,
·Demolishing and removing buildings, structures and works.
·Relocating, modifying and upgrading services and utilities, including telecommunications infrastructure.
·Combined Services Routes, cabling and signalling upgrades and modifications.
·Constructing and using temporary access roads, diversion roads and vehicle parking areas.
·Constructing fences, temporary site barriers and site security.
·Constructing or carrying out works to create roads, car parking areas, bunds, mounds, landscaping excavate land, salvage artefacts and alter drainage.
·Earthworks including cutting and spoil removal, and formation of drainage works.
·Displaying construction, directional and business identification signs.
·Subdividing and consolidating land.
Chronology of events and affidavit evidence
The Minister relied on two affidavits. The first was made by Brett Summers, who is LXRA’s project director leading the Caulfield to Dandenong Level Crossing Removal Project, dealt with the expression of interest stage, the selection by the Government of a shortlist of bidders, the request for proposal stage involving the shortlisted bidders preparing and lodging their bids, the selection of the preferred bidder and the award of the contract. The second was made by Julian Lyngcoln, who is executive director of planning implementation in the Department of Environment, Land, Water and Planning, dealt with preparation of the brief to the Minister concerning Amendment GC37.
LXRA’s purpose is to achieve the removal of 50 level crossings on the Melbourne metropolitan rail network, 20 by 2018 and the remainder by 2022, in accordance with the Government’s policy and 2014 election commitment. The Project involved nine of those crossings.
Mr Summers stated that on 31 March 2015, the Premier and Minister for Public Transport announced works to the Cranbourne and Pakenham railway lines, which, amongst other aspects, included the removal of all nine level crossings between Caulfield and Dandenong railway stations.
He stated that the Project works were to be carried out by a private sector contractor determined by the Government after a confidential tender process that involved an expression of interest stage, the selection by the Government of a shortlist of bidders, a request for proposal stage involving the shortlisted bidders preparing and lodging their bids, the selection of the preferred bidder, and finally the award of the contract.
He stated at both the expression of interest stage and the request for proposal stage, the State did not mandate or indicate any preference for any solution for the removal of the nine level crossings. They were matters for the bidders, with their design and construction expertise.
In September 2015, LXRA released a pamphlet titled ‘Level Crossing Removal Update 02’, the contents of that document implied that no particular design solution had been adopted and such matters would be ‘on the table’ for discussion. Accompanied by illustrations demonstrating the application of various urban design principles, the pamphlet included this passage:
What will your level crossing removal look like?
This is a question we heard a lot at our recent community engagement events. To be honest, we don’t know yet, which is why we need your continued feedback throughout the tender process.
When planning a level crossing removal, there are a number of options to consider at each site. These options may include a variation on the following:
Rail under road – lowering the rail line under the road;
Rail over road – building a rail bridge over the road;
Road over rail – building a road bridge over the rail line; and
Road under rail – lowering the road under the rail line.
No mention was made of an elevated rail design.
In early February 2016, the Government selected one of the two short-listed bidders as the preferred bidder, namely the consortium comprising Lendlease, CPB Contractors, WSP Parsons Brinckerhoff and Aurecon. It was only then, that the preferred solution and the proposed concept design for the works for the project were known and could be made public.
On 7 February 2016, the Government announced that it had chosen a consortium as preferred bidder and released the consortium’s proposed concept designs for the works for the project. In a media release, the Government stated that it would remove the nine level crossings between Caulfield and Dandenong by ‘elevating sections of the Cranbourne-Pakenham line and transforming Melbourne’s busiest rail corridor into a public open space.’ The release referred to more than 1,500 pieces of feedback as having informed the designs released, and stated:
The next phase of consultation will begin immediately, with the project team out speaking to thousands of locals about the designs, and giving the community a say on what they want to use their new open space for.
Mr Summers referred to the consultation process and said that feedback received from members of the community, local government and other stakeholders through the consultation process were supplied to the preferred bidder so that it could take them into account in refining its proposed concept design that had been released for public display and comment on 7 February 2016. He said that the bidder did so, making a number of changes that were consistent with that feedback.
In April 2016 the preferred bidder submitted its finalised concept design for the works for the project. On 22 April 2016, the Government announced that it had signed a contract with the preferred bidder to carry out the works for the project.
On 22 April 2016, when the Treasurer announced that the contracts had been signed, the Minister for Planning received a letter (‘the Request’) from LXRA Chief Executive Officer, Kevin Devlin, requesting that the Minister exercise the powers available to him under s 20(4) of the Act. The Request contained reasons that were later used by the Minister in forming his opinion, and summarises the nature and effect of Amendment GC37 and in relevant parts they state:
The Project’s Significance
The Project provides for the removal of nine level crossings between Caulfield and Dandenong railway stations, five station redevelopments, track modifications, signalling and services upgrades and associated facilities and infrastructure along the entire Cranbourne Pakenham rail corridor to accommodate the projected increase in rail services along this corridor and improve its efficiency and operation.
Improvements to the capacity of the Cranbourne Pakenham rail corridor are urgently required. The corridor services the south-eastern suburbs of Melbourne including the South East Growth Corridor in which current high levels of population growth are expected to continue. Public Transport Victoria’s Network Development Plan – Metropolitan Rail (2012) identifies that the Dandenong rail group (including the Cranbourne Pakenham rail corridor) will become the busiest rail corridor on the network by 2020.
However, the potential for increasing the number of services on the corridor is constrained by the impact on boom gate closures on the road network.
The Project is a core element of the Government’s $5-6 billion commitment to remove 50 of Melbourne’s most dangerous and congested level crossings, with the Project providing for the removal of nine level crossings by late 2018. Together with the Melbourne Metro Rail project and the delivery of High Capacity Metro Trains, the removal of level crossings is part of a wider programme to modernise the metropolitan rail network, respond to population growth and maintain Melbourne’s liveability.
The improvements to the rail corridor that will be achieved by the Project will improve safety and increase patronage on Melbourne’s busiest rail line. Removing the nine level crossings will also reduce congestion making travel around Melbourne’s south-eastern suburbs quicker and easier. New road layouts have been designed to improve traffic flows and reduce congestion around the station precincts. Where possible, additional new link roads have been incorporated to further reduce traffic on the existing main roads crossing the rail corridor.
Local community facilities will be enhanced with new stations and associated precincts to be built at Carnegie, Murrumbeena, Hughesdale, Clayton and Noble Park. The Project will create 22.5 hectares of public open space which will be developed as a shared user path with associated landscaping, and opportunity for future activation for recreational activities. It is estimated that the Project will create over 2,000 jobs.
Extensive Consultation on the Project
The Project has been the subject of an extensive community consultation and engagement program both before and following release of the preferred designs for the Project in February 2016. This comprehensive engagement ensured that those people who may be affected by the Project or the Amendment were adequately consulted, and had an opportunity to express their views.
Special efforts were made to ensure that the owners and occupiers of properties who may be affected by the Project and the Amendment were fully aware of implications for their property and were able to make information submissions to LXRA.
LXRA has met with a large number of stakeholders, including relevant government agencies to discuss the Project and the planning approval and submissions process. The Project area traverses nine municipalities and engagement with the Monash, Glen Eira, Greater Dandenong and Kingston councils (the municipalities where the most substantive works will be carried out) has been a particular focus since the request for tender phase in 2015, with a specific briefing held during the 2016 formal consultation period. Melbourne, Yarra, Stonnington, Casey and Cardinia councils have been informed of the works that will be taking place within the boundaries of those councils. All councils affected by the Amendment have been provided with an opportunity to comment on the Amendment, and the draft Environmental Strategy which is proposed as a condition of the site specific provision.
LXRA will continue to implement an extensive consultation program with Government agencies, local authorities, residents, other potentially affected parties and the wider community during the design development and construction phases to ensure that views and feedback are collected and taken into account in finalising the designs. You will be aware that the advice of the Office of the Victorian Government Architect (OVGA) has been an integral component of the Project tender evaluation process, and will continue to play a vital role, ensuring that this Project leaves a positive legacy for future Victorians. I have attached a letter from OVGA outlining its role and aspirations for the project.
Amendment GC37
Amendment GC37 will facilitate development of the Project by inserting the Caulfield Dandenong Rail Upgrade Project Incorporated Document, April 2016 into the above planning schemes.
The incorporated Document will ensure that the Project can be developed in a co-ordinated, consistent and timely manner under a single planning control. Despite occurring in an existing rail corridor zoned for the purpose, without the Amendment, the Project would require multiple planning permits for discrete components of the Project in different municipalities across the Project area.
Amendment GC37 is required to afford flexibility in the delivery of core infrastructure and some preparatory works on public land. Once gazetted, the Amendment will enable construction schedules to meet the Government’s commitment to deliver these works by late 2018. Without the certainty provided by a single planning control, it is likely that crucial construction windows will be missed, resulting in significant delays and increased cost and inconvenience to the community.
For the above reasons and in reliance upon the material enclosed with this letter, you are requested to prepare, adopt and approve the Amendment.
The Request attached a letter by the Office of the Victorian Government Architect that enclosed two voluminous documents; the first titled: Caulfield Dandenong Rail Upgrade Project: Planning Scheme Amendment GC37 Planning Report; and the second titled: Level Crossing Removal Project: Caulfield to Dandenong, Consultation Outcomes and Submissions Report.
Documents received by the Minister
The documents comprising the Request formed the basis of the Brief concerning amendment GC37 that was prepared for the Minister. A senior project manager within the Department, Edwina Ryan prepared the Brief, under the supervision of manager, Paul Jarman. In turn, Mr Jarman was subject to Mr Lyngcoln’s immediate supervision and direction.
The Brief comprised of the following:
(a) the briefing note to the Minister prepared by Ms Ryan;
(b) unsigned letters from the Minister for Public Transport, the Chief Executive Officer of the Level Crossing Removal Authority, and the Mayors of each of the Councils affected by GC37;
(c)unsigned reasons for the Minister’s decision under s 20(4) of the Act;
(d)unsigned document entitled: ‘Amendment GC37: Preparation, Adoption and Approval of an Amendment by the Minister for Planning’;
(e)the LXRA Request;
(f)Amendment GC37 Explanatory Report;
(h)document entitled ‘Planning and other legislative requirements for the Caulfield Dandenong Rail Upgrade Project’;
(i)document entitled ‘Level Crossing Removal Project: Caulfield to Dandenong Consultation Outcomes and Submissions Report’ marked ‘Working draft for internal discussion’ and dated April 2016;
(j)letter from Glen Eira City Council;
(k)letter from Monash City Council;
(l)letter from Stonnington City Council; and
(m)email from Kingston City Council
The briefing note was 11 pages in length and its covering page included a short paragraph titled ‘core message’ that read:
Core Message
The Level Crossing Removal Authority (LXRA) has requested a ministerial amendment to facilitate the timely delivery of the Caulfield Dandenong Rail Upgrade Project (the project) which includes the removal of nine level crossings on the Cranbourne Pakenham line between Caulfield and Dandenong, as well as new and upgraded rail infrastructure along the entire length of the rail corridor. The project will deliver significant safety improvements, reduce congestion and increase capacity along one of Melbourne’s fastest growing population and employment corridors. The request is supported by a detailed summary of the community consultation undertaken by the LXRA following the release of the proposed designs for the level crossing removals in February 2016.
Timing Urgent.
The briefing note made four recommendations, one of which was for the Minister to exercise his power under s 20(4). The briefing note relevantly stated:
6It is recommended that you exempt yourself from the requirements of sections 17, 18 and 19 of the Act and the Regulations, under section 20(4) of the Act on the basis that compliance of those requirements is not warranted; and that the interests of Victoria make the exemption appropriate.
Notice of the amendment is not warranted because:
·Third parties who may be affected by the amendment were provided with the opportunity to provide comment during consultation on the level crossing removals. Where practicable, their concerns have been addressed in the incorporated document forming part of this amendment.
·The exemption of the amendment will avoid unnecessary duplication of process, as consultation on the project was undertaken with potentially affected parties. Their views are well understood, and have been taken into account during the preparation of the amendment. Further consultation would be unlikely to identify any new issues, or to result in changes to the amendment.
The interests of Victoria make the exemption appropriate because:
·The exemption will enable a prompt decision to be made on the adoption or an approval of an amendment which facilities the timely delivery of a project of critical importance to Victoria, as the project will increase safety, reduce congestion and contribute to a more efficient and reliable public transport system.
Two additional enclosures were included with the Brief. The first was Amendment GC37 documents, consisting of an Explanatory Report, Instruction Sheet, the Incorporated Document titled 'Caulfield Dandenong Rail Upgrade Project: Incorporated Document' dated April 2016, and, for each affected planning scheme, the Schedule to Clause 52.03 and Schedule to Clause 81.01. The second additional enclosure was the Officer Amendment Report.
The Minister’s decision
As previously mentioned, the Minister made the decision to use the exemption power on 25 May 2016.
On the same day, the Minister adopted and approved amendment GC37 and on 27 May 2016, the Minister published notice of approval of Amendment GC37 in the Victorian Gazette. Neither House of Parliament revoked the amendment.
The Minister’s reasons
On 25 May 2016, the Minister signed the Briefing Note, approving the Department’s recommendations without revision. The Minister also signed letters to various interested parties advising of his decision; the reasons for his decision; and the amendment itself.
The Minister provided written reasons for his decision to use the exemption power. Although the Minister was under no statutory obligation to provide reasons, having done so, they are the best evidence of his opinion forming process leading to the decision under review.
Those reasons discuss the merits of the Project in general terms and conclude by giving specific reasons for the Minister’s decision to exempt himself under s 20(4). Those reasons are divided into two sections that reflect the two independent bases for the exercise of discretion provided for in s 20(4). Relevant parts of the Minister’s decision and specific reasons dated 25 May 2015 are:
REQUEST FOR INTERVENTION
1.The Level Crossing Removal Authority (LXRA) has requested this intervention to facilitate the Caulfield Dandenong Rail Upgrade Project (the project) which includes the removal of nine level crossings on the Cranbourne Pakenham line between Caulfield and Dandenong, the redevelopment of five railway stations at Carnegie, Murrumbeena, Hughesdale, Clayton and Noble Park, and new and upgraded infrastructure between the city loop and Cranbourne and Pakenham railway stations.
WHAT POWER OF INTERVENTION IS BEING USED?
2.Section 20(4) of the Act enables the Minister for Planning to exempt an amendment which the Minister prepares from any of the requirements of sections 17, 18 and 19 of the Act or the regulations.
3.In seeking to exercise this power, section 20(4) of the Act requires that the Minister must consider that compliance with any of those requirements is not warranted or that the interests of Victoria or any part of Victoria make such an exemption appropriate.
4.I have decided to exercise my powers to exempt myself from all the requirements of sections 17, 18 and 19 of the Act and the regulations in respect to Amendment GC37 to the Cardinia, Casey, Glen Eira, Greater Dandenong, Kingston, Melbourne, Monash, Stonnington and Yarra Planning Schemes (the relevant planning schemes).
5.I have decided to exercise this power for two independent reasons: first, that I consider that the interests of Victoria make such an exemption appropriate; and, second, I consider that compliance with the requirements is not warranted in all the circumstances.
…
INTERESTS OF VICTORIA
23.The exemption will enable a prompt decision to be made on the adoption and approval of an amendment which facilitates the timely delivery of a project of critical importance to Victoria, as the project will improve safety, reduce congestion and contribute to a more efficient and reliable public transport system.
COMPLIANCE WITH REQUIREMENTS NOT WARRANTED
24.The effect of the exemption is that third parties will not receive notice of the amendment and will not have the opportunity to make a submission or be heard by an independent panel in relation to the amendment.
25.Third parties who may be affected by the exemption were provided with the opportunity to provide comments during consultation on the level crossing removals. Where practicable, their concerns have been addressed in the incorporated document forming part of this amendment.
26.A public exhibition process for the amendment is not likely to identify any new issues which were not identified during consultation on the level crossing removals.
27.The exemption of the amendment from the usual notice requirements under the Act will avoid unnecessary duplication of process, as consultation on the project was undertaken with potentially affected parties. Their views are well understood, and have been taken into account during the preparation of the amendment. Further consultation would be unlikely to identify any new issues, or to result in changes to the amendment.
28.Having regard to the consultation which was undertaken in February and March 2016, and the fact further consultation would be unlikely to identify any new issues, and having regard to the benefits arising from the timely delivery of the project, I consider that compliance with sections 17, 18 and 19 of the Act and the regulations is not warranted.
Public Consultation
The Government undertook public consultation about the project in two discrete phases. The first stage, the preliminary stage, began in June 2015 and continued until the announcement of the winning bid and preferred design in February 2016. The second stage of consultation ran from 8 February to 18 March 2016, which, using the language of LXRA, comprised the formal consultation. During this stage, written submissions were invited to provide feedback on the proposed design and offer ideas on particular elements of the design, for example, how best to utilise the space beneath the elevated railway.
Preliminary consultation
A report detailing the preliminary phase of consultation was produced by LXRA but was not included in the Brief to the Minister. However, the contents of that report were summarised in the Planning Scheme Amendment GC37 Planning Report, which the Minister received. That summary disavowed any intention by the LXRA to pursue any particular design, stating:
Consultation started in June 2015 with the release of expressions of interest for the design and construction of the Project. Communications and consultation at this time focused on raising awareness of the Project, understanding community expectations and clarifying differences between this project and the former unsolicited proposal considered in 2014…
At this stage, all possible design options were considered for the removal of the nine level crossings. Feedback received was provided directly to bidders as they began the development of designs.[20]
[20]Caulfield Dandenong Rail Project Upgrade Project: Planning Scheme Amendment GC37 Planning Report.
At this stage, whilst the tendering process was ongoing, the design options under consideration and evaluation were confidential. Community feedback on specific designs arising from the tendering process was confined to that received through a Community Tender Advisory Panel (‘CTAP’), formed to convey a representative community view to the tenderers. The CTAP met four times during the request for proposal stage. At one meeting, on 31 August 2015, the CTAP discussed ‘project elements where designs may be most controversial or different’.
Formal consultation
The formal consultation period ran from 8 February to 18 March 2016. The feedback received by LXRA was collated and summarised in the ‘Consultation Outcomes and Submissions Report’ (‘the Draft Report’). The final consultation report was 50 pages long. However, the Minister received the Draft Report, which was marked ‘working draft for internal discussion’ and dated April 2016, and was 134 pages in length.
Draft Report
The Draft Report contained two parts. Part A, titled ‘Engagement program and findings’, described the activities undertaken by LXRA during February and March 2016 in consultation with ‘residents in the project corridor, traders in key business centres, a large group of stakeholders… the wider community and the four councils within the project corridor’. Part B, titled ‘Submissions and detailed responses’, categorised and responded to the community feedback received during the formal consultation period, including the 1,573 written submissions received by LXRA.
The Draft Report stated that it focused on consultation phase four (November 2015 onwards) which involved working with the preferred bidder to identify specific design elements.[21] The Draft Report then stated:
[21]The Draft Report described the consultation process as involving four phases that aligned with different stages of the tendering process. For convenience, I have referred to all consultation that occurred before the formal consultation as comprising one discreet stage and then the formal consultation as another.
Consultation Activities
…
The design of the project was selected on the basis of a number of factors, including engineering constraints, environmental benefits, urban design outcomes and the feedback from the previous community sessions on what was important to people. As such, this consultation was not for people to ‘vote’ on the design solution, or select a design solution that suited individual or group preferences or circumstances, but for LXRA to gather feedback and understand concerns to ensure that these could be addressed as much as possible.
2.1 Formal consultation
Formal consultation started in February 2016 on the proposed design and elements like the open space opportunities. This extensive consultation program has included the following.
Information gathered through this consultation program will be used to refine the designs and develop appropriate responses to key themes, issues and concerns that emerge from the process. Feedback received will also be provided to the Minister for Planning as part of a formal request to amend the relevant planning schemes. The proposed planning scheme amendment will apply to land within the rail and road corridors affected by the project, as well as any land temporarily required for construction, including access to the rail corridor.
The Draft report stated that the project team conducted one-on-one meetings with residents whose homes abutted the rail corridor, as well as conducting broader community consultation with households within a 3 kilometre distance to the train line. The views of train commuters and traders were also sought. The project team spoke with residents immediately adjacent to the project area prior to, and in the days following, the announcement to introduce the proposed designs and provided information to facilitate residents to meet directly with members of the project team at a subsequent one-on-one meeting.
Part A of the Report included a table summarising all feedback received during the formal consultation phase. Sixty-seven percent of the 1,573 written submissions mentioned elevated rail. The table was in the following terms:
| Activity | Statistics | Key Findings |
| Community research | 2,200 telephone interviews. | 82 percent in favour of project and its design. |
| 440 face-to-face interviews. | Key benefits | |
| 663 train users interviews. 144 business interviews. | Reduction in road congestion and improvements in road user and pedestrian safety. | |
| Key concerns | ||
| The majority of respondents did not raise any concerns, but the two mentioned most were changes to environment and rail noise. | ||
| Suggestions for land use under the elevated | N/A | Local Preferences (online and information sessions): |
| rail. | Green parks were the preference in all locations except for Ross Reserve where a BBQ area was the first preference, followed by green parks. | |
| Wider community views (community research): | ||
| Top three responses were community parking (37%), green parks (34%) and community gardens (31%) | ||
| Community feedback | 4,034 comments on issues. | Elevated rail 18% |
| — online and at information sessions | Other design issues (including future capacity) 12% | |
| Station design 10% | ||
| Parking 10% | ||
| Cycling and pedestrians 10% | ||
| Written submissions | 1,573 written submissions. | Elevated rail (1,052 submissions) 67% |
| Visual impact (681 submissions) 43% | ||
| Train noise (599 submissions) 38% | ||
| Consultation on design options 32% | ||
| Graffiti, vandalism and waste 31% |
The key finding under the section titled ‘wider community views’ was that 82 per cent of people surveyed were in favour of the project and its design with reduction of road congestion and the improvements in road user and pedestrian safety identified as the two greatest benefits. The two key areas of concerns raised were disruption during construction and visual impacts of the elevated rail line. However, the Draft Report stated that the most frequent response of groups surveyed was that they did not have any specific concerns.
The Draft Report identified the top five themes received from feedback being: design – elevated rail and station design (40%); traffic and transport (28%); community consultation (11.6%); new public and open space areas (10.7%) and local amenity (9.7%).
The discussion points on the theme of ‘design – elevated rail and station design’, were summarised as follows:
Design was the issue most frequently raised during the consultation, particularly about the elevated rail design and the station designs. Some people expressed an understanding that this was the most efficient option for quickly addressing the level crossings, while many respondents immediately adjacent to the rail line were concerned about the design. Many individual property owners requested compensation or purchase of their property. Feedback on the station designs mainly related to opportunities to improve accessibility to stations through escalators.
The discussion points on the theme of ‘community consultation’, were summarised as:
The community consultation process was a key issue for some respondents, who suggested they would have like to have seen design options prior to this phase of the project.
Part A concluded by describing issues that concerned stations and suburban precincts where the nine level crossings were located.
The first station discussed Carnegie Station with the level crossing at Grange Road and Koornang Road. In that case, the Draft Report recorded a number of ‘areas’ of interest in respect of elevated rail, including impacts to local residents – noise, visual and safety, concerns about community spaces and community consultation and safety and residential impacts. The Report recorded the design suggestions that were made in respect of those issues.
In the case of Murrumbeena Station, the key responses included aspects of elevated rail and the summary of the feedback received was:
Elevated Rail
Feedback was received that the community expected to be consulted on all design options, not just the preferred design. There was mixed feedback on the preferred design, with many comments stating a preference for a rail under road solution; in contrast, other comments were received that were positive about the elevated rail design and its cost effectiveness. Requests were received for more details on how elevated rail would work in terms of noise, open and useable space.
The responses for Murrumbeena Station about elevated rail included its visual and noise impacts, community space maintenance and identity and neighbourhood character. Suggestions were made for design improvement.
In respect of Hughesdale Station, again a number of matters were raised in respect of elevated rail. The feedback received was summarised as including:
Visual Impact
Concerns were raised from residents adjacent to the corridor that the elevated rail could have a detrimental impact on the visual amenity of the area. Suggestions were received for visual treatments to reduce the impact, including the use of colour, underneath the rail line to link with the character of the suburb.
Other feedback received concerned noise, community space maintenance and station design.
In respect of Clayton Station, issues were raised in respect of elevated rail, including property impacts, the design, noise, community space maintenance and station facilities.
In respect of Noble Park Station, responses were received regarding elevated rail, noise, safety, maintenance of community spaces, appearance and matters relating to the station design.
Part B of the Draft Report dealt with the 1,573 written submissions received by LXRA in February and March 2016 and detailed responses to the issues they raised.
The subject matters raised by the written submissions were divided into the following 14 categories: community consultation; elevated design; impacts on community facilities; operational noise; amenity impacts; neighbourhood character; new public open space areas; vegetation; traffic and transport; impact on property values; legal process; safety; impact of construction; and whether there would be third and fourth tracks.
Under each category, LXRA noted the issues raised and the response that it had formulated to address the issues. Those responses were divided into the categories of ‘new initiative in response to consultation’ and ‘enhanced initiative in reference design’. Examples of new initiatives introduced to respond to various issues were: implementation of a voluntary purchase scheme for those residential properties that would be most highly affected; a fencing and landscape program for properties abutting the corridor; creating stakeholder liaison groups to provide input on local issues throughout delivery of the Project; and installation of new escalators at Carnegie, Murrumbeena and Hughesdale stations.
Each of the above measures was said to be in addition to measures that addressed a number of concerns raised, including:
·Installation of noise walls along the elevated structure to achieve compliance with the State Government’s Passenger Rail Infrastructure Noise Policy.
·Privacy screens along the elevated structure to prevent overlooking into residential properties.
·Significant landscaping.
·Committing to a new station at Noble Park.
In total, of the 1,573 written submissions received:
·1,052 or 67% were concerned about elevated rail.
·681 or 43% concerned visual impact of elevated structure.
·589 or 38% concerned train noise.
·506 or 32% concerned consultation activities for the design.
·Other matters included the potential for graffiti, vandalism and waste; security issues; new public spaces; compensation; property values; and a voluntary purchase program.
One prominent issue raised was the consultation process itself and that feedback was summarised as:
A frequently raised issue was the extent of public consultation on potential design options prior to the tender process in 2015. Some submissions asserted that previous consultation did not take place, was flawed, was not advertised or mislead the public that solution would be ‘rail under’. A number of submissions also expressed the view that the public had been presented with the current elevated solution as a ‘fait accompli’.
That summary recognised community frustration at the consultation process. LXRA’s response, which I next set out, was not included in the final report made available to the public:
Throughout this consultation[22] LXRA clearly stated that it was considering all options for removing the nine level crossings, included both elevated rail options and ‘trenched rail under’ options. At no stage was any indication given that a ‘trenched rail under’ solution would be preferred for any of the nine level crossing sites to be removed. Examples from around the world of different design options, including elevated rail, were on display at the sessions.
…
During these sessions community members participated and provided feedback that was provided to the tendering consortia to inform the development of the design proposals.
Despite this, LXRA acknowledge that the local community may have had an expectation or perception that the only design to be considered in this area could be a ‘trenched rail under’ option. In part this can be attributed to the proposed designs that were presented under an unsolicited proposal considered in 2014 to remove four level crossings and rebuild two stations along the Cranbourne-Pakenham line. This project was publicly discontinued in early 2015 and the LXRA process was consistently reinforced as being an entirely separate project consisting of nine level crossing removals and (initially) four new stations.
As set out in section 2 of this report, a further comprehensive phase of consultation was undertaken following the release of the preferred designs. This report details the feedback of all elements on the preferred designs, including the uses of the newly created public open space areas…
Although elevated rail is common in Australia and around the world, this design is a new way of removing level crossings in this community and there are changes and impacts that need to be well communicated and managed. It is understandable that the elevated rail design would be the number one issue raised across the Your Suburb, Your Say consultation program, written submissions and in social media comments.
[22]In the second half of 2015.
The Draft Report described the choice of design in the following passage:
The preferred solution was identified through this evaluation and was assessed as having the maximum advantages and minimum disadvantages of all options considered. Critically, there was no single factor that determined an elevated rail solution as being preferable over a ‘trench rail under’ solution. Rather, the selection of this design was the product of an accumulation of factors that were specific to the location of the project, the engineering constraints at each site, the feedback provided by the community during the tender process and a range of other considerations.
The Draft Report listed the benefits of the elevated rail solution, discussed the cost of the design and considered issues concerning station design, rail and civil design.
The Draft Report also considered other issues raised, including community facilities, and the effects of noise and vibration. It proposed that there be individual liaison with residents on the appearance, height and location of noise walls which would continue throughout the detailed design phase. The noise walls would be erected along the elevated structure to meet the Victorian Government’s Passenger Rail Infrastructure Noise Policy.
The Draft Report also discussed the feedback received on amenity issues. They included concerns that the elevated railway would be unattractive and would have a negative effect on views, particularly from nearby properties and public open spaces. This issue of amenity was raised in many of LOTI’s affidavits and overlapped with complaints about the design’s impact on the amenity and visual character of the neighbourhoods. The majority of submissions raising this issue were received from the area between Grange Road, Carnegie and Poath Road, Hughesdale.
LXRA acknowledged that nearby residents would be impacted by visual changes. It proposed a fencing and landscaping program and providing privacy screening along the elevated structure to prevent overlooking into residential properties. Other issues of concern to residents that were discussed in the Draft Report included overshadowing; light spill from illumination; and glare from the variety of light sources created by the Project, particularly car headlights in new parking areas.
A further section of the Draft Report dealt with neighbourhood character. Feedback received included concerns that new viaducts and stations would not be in keeping with the existing character of suburban neighbourhoods along the Caulfield to Dandenong corridor. The effect on heritage values was also raised. Responses to these issues were proposed.
Further issues raised included those of new public open spaces; vegetation; traffic and transport. On the issue of potential adverse impact to property values, the Draft Report included the proposal to create a voluntary purchase scheme. A further issue was described as ‘legal process’ relating to environmental assessments being undertaken as part of a current approval process and, specifically, why no comprehensive environmental assessment, such as an Environmental Effects Statement, was being undertaken. Safety concerns and issues relating to the construction phase were also addressed. In each instance, issues were identified and a specific response, usually relating to a specific area within the Project, were given to address or ameliorate that issue.
Representations from local councils
In addition to the submissions gathered by LXRA from the public, during the formal consultation period, LXRA also received representations from Councils and council officers in those areas affected by the Project.
The Mayor of Glen Eira wrote to Mr Summers on 16 March 2016 expressing the Council’s position that consultation on the elevated rail aspect of the design be provided. He wrote:
Given the significance of the proposal, the call for submissions by 18 March 2016 provided a very short time frame as the proposal was only announced to council and the community on 8 February 2016.
The letter then stated that the Glen Eira Council’s submission had been made without the benefit of full reports on noise, environmental, amenity and community impacts, vibration analysis, safety, or a cost benefit analysis. It urged that no further action be taken to construct an elevated train line until after full and genuine consultation as to whether that was the community’s preferred option. The Glen Eira Council sought details of the consultation plan and stated:
[I]n the absence of such a plan, many in the community are feeling distressed, disempowered and disaffected. The best community outcome is one that involves the community through a genuine consultation process.
Sean McNamee, a manager at the City of Monash, wrote to LXRA on 11 April 2016, in response to a request by LXRA for feedback on the draft incorporated document. Mr McNamee stated that:
Officers are of the firm view that the incorporated document should provide Council with a meaningful opportunity to participate in the project.
He noted that further comments on the project might be made.
Warren Roberts, Chief Executive Officer of the City of Stonnington, wrote to the Minister on 12 April 2016, also in response to the LXRA request for feedback on the incorporated document. On behalf of the Council, he requested further time to enable a considered response, and stated:
Officers have significant concerns about the extremely short timeframe to provide feedback, the content of the Incorporated Document and lack of detail in the Draft Environmental Management Strategy.
…
Council respectfully requests additional time and a formal referral to enable a considered response to the incorporated Document in light of the significance of the project and its potential impact. Council would welcome an extension to the timeframe to enable meaningful input at this and future stages.
Objections to LOTI’s affidavit evidence
LOTI relied on ten affidavits in support of its case. It had filed approximately 162 affidavits, but, to enable the case to be completed in a timely manner, after discussions with the parties and between the parties, I directed that it nominate 10 affidavits, on which it would rely that contained the facts that it wished to present. The Minister did not cross-examine any of the ten deponents.
The Minister objected to much of the contents of LOTI’s affidavits on the ground that they were not relevant in a judicial review application, particularly to the unreasonableness ground, as the relevant evidence on that ground is often confined to the documents and information that the decision-maker had when he made the decision. To ensure that the proceeding was completed in the two days allocated, at the parties’ suggestion they filed further submissions about the objections after the hearing was completed. In the table of objections that he filed, the Minister described the objection about the limits of new evidence as:
Irrelevant because, as a matter of law, the only evidence as to the 2016 consultation process relevant for ground 1 is evidence as to what was before the Minister.
Section 55(1) of the Evidence Act 2008 states the test for determining whether evidence is relevant in the following terms:
The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
LOTI asserted that the affidavits were relevant to a case based on Wednesbury unreasonableness, as in certain circumstances evidence that was not before the decision-maker could be admitted, particularly where jurisdiction was dependent on an actual state of facts that did not exist or based on the finding of a particular fact that did not exist.[23] It submitted that everything that the Minister knew when he made his decision was relevant. Most of the evidence which was objected to concerned the conduct of LXRA employees in their dealing with the deponents of the affidavits and other persons affected by the elevated rail design. LOTI submitted that the Minister was to be taken as having constructive knowledge of everything known to the LXRA that was connected with its application that the Minister exempt himself from the requirements of ss17-19. Although not part of the Minister’s department, LXRA prepared the amendment for the Minister in the first instance, and also prepared the consultation report.
[23]Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446, 564-6 (Weinberg J).
In support of these contentions, LOTI relied on the statement of Brennan J in Minister for Aboriginal Affairs v Peko-Wallsend Pty Ltd,[24] that the Minister in his exercise of power cannot be regarded as unaware of information possessed by his Department. His Honour cited English authority that:
Discretion in making administrative decisions is conferred upon a minister not as an individual but as the holder of an office in which he will have available to him in arriving at his decision the collective knowledge, experience and expertise of all those who serve the Crown in the department of which, for the time being, he is the political head. The collective knowledge, technical as well as factual, of the civil servants in the department, and their collective expertise is to be treated as the Minister’s own knowledge, his own expertise.[25]
[24](1986) 162 CLR 24, 66.
[25]Bushell v Environment Secretary [1981] AC 75, 95 (Lord Diplock).
LOTI submitted that this principle extended to information possessed by LXRA because the Minister had relied on its ‘collective knowledge, experience and expertise’. He held a position of authority over LXRA because he approved a planning scheme amendment that it had drafted and submitted. The Court should be satisfied on the balance of probabilities that the Minister had actual or personal knowledge:
(a) that elevated rail plans for the nine level crossings were known by LXRA and kept secret until 7 February 2016;
(b) that the Government did not wish to, and did not in fact, present any alternative plan for comment to the community after 7 February 2016;
(c) that the Government’s mind was closed to any submissions against SkyRail; and
(d) that the Government wished to and did discourage any negative feedback to SkyRail.
Evidence of the Government’s communications to the community in 2014 and 2015 and of the non-disclosure of the elevated rail plans before the 2014 election was relevant to establishing that the Government faced the potential for political embarrassment if the elevated rail project was made public. That factor was relevant to each of the grounds on which LOTI relied.
Evidence of the emotional reaction of the deponents of LOTI’s affidavits to the announcement of SkyRail and the effect of the elevated rail design on the community was relevant to establishing that the project had a controversial character and that, in turn, was relevant to grounds 2 and 3.
As previously mentioned, the Minister submitted that fresh evidence that was not before him when he decided LXRA’s application could not be admitted in support of ground one being the Wednesbury unreasonableness ground. He argued that the principle that Brennan J stated in Peko-Wallsend extended only to a Minister’s own department and LXRA was not part of the Minister’s department. There was no basis for drawing an inference that the Minister knew of the matters alleged by LOTI. Such a suggestion was incompatible with the matters sworn to by Mr Summers and Mr Lyngcoln.
The Minister submitted that, in any event, the evidence made clear that he did not rely on the collective knowledge, experience and expertise of LXRA as LOTI suggested. Rather, following LXRA’s request that the Minister exempt himself under s 20(4), the Minister’s Department, over some weeks, individually assessed LXRA’s request and the accompanying materials, prepared an officer report and a briefing note to the Minister and materially amended LXRA’s versions of the proposed incorporated document and explanatory report that had been proffered by LXRA. It then provided a brief to the Minister containing those and other materials. The Minister himself approved the amendment.
The Minister also submitted that the question of whether the Project was controversial was not relevant to the issues in the proceeding and, in any event, the contents of the affidavits about that issue were of little weight.
Conclusions on evidentiary objections
I do not accept that the Minister had constructive knowledge of everything that LXRA knew, and in many instances I have upheld the Minister’s general objection to the admissibility of evidence that was not before him when he made his decision. For example, many of the matters to which LOTI’s affidavits referred concerned individual communications or interactions with LXRA staff at community meetings, and that was not information before the Minister.
Nevertheless, parts of LOTI’s affidavits which were objected to are admissible. These include the statement of facts which are a matter of public record, such as the date when expressions of interest were called, or the fact that the exemption application was not notified to the public or persons who may have been affected by it. Details of LOTI, including the circumstances of its establishment, of when the community members became aware of the elevated rail plans, and the opportunities that they were given to express their views to LXRA are also of general relevance. However, the deponents’ statements of their reactions on learning of the elevated rail proposal, while of understandable human significance, are not relevant to the grounds of judicial review on which LOTI relies. I accept, however, LOTI’s submission that even in the absence of such evidence, it was likely that many members of the local communities might react adversely and emotionally to an elevated rail project.
Some parts of the affidavits to which objection was taken are relevant to grounds two and three, as they contain a chronology of or details of events on which those grounds might be based. However, some other parts of the affidavits contain hearsay or deal with extraneous matters and are not admissible.
I will next consider each of the ten affidavits on which LOTI relied, save for those parts that LOTI did not press.
Affidavit of Susan Bousie
Ms Susan Bousie has lived in Murrumbeena for ten years. I consider that the following statements in her affidavit are admissible as general background facts or because the knowledge that she expressed was based on publicly known facts.[26] During 2014 and 2015 she was aware that the Government had plans to remove level crossings, but unaware of any elevated rail plans. She was first notified of the elevated rail design on Saturday, 6 February 2016 when two LXRA representatives dropped information about SkyRail on her doorstep. She learned that the elevated railway was 12 metres high with a 20 metre high station, which is located across the road from her home in a Residential Zone 1 area. On 7 February 2016, the Premier announced the Government’s SkyRail plans to the public. Prior to 27 May 2016, Ms Bousie had not been informed that part of the process of introducing SkyRail was an amendment to local planning schemes, removing planning authority from the local Council to the Minister for Planning.
[26]Contained in paragraphs 1-7, 11, 12, 17, 19, the second sentence of paragraph 22 and the first sentence of paragraph 23.
LOTI’s submissions
LOTI submitted that in about mid-2015, the Government changed the plan for the removal of the nine level crossings to provide for the use of an elevated rail design, but the community was not advised and continued to be informed that the under rail design would be used.
LXRA did not disclose whether the other short listed bidder had also proposed elevated rail as a component of its design and the Court should infer that it did.[40]
[40]Jones v Dunkel (1959) 101 CLR 298.
LOTI submitted that the Minister failed to distinguish between circumstances which enlivened the discretion conferred by s 20(4) to exempt himself from the requirements of ss 17 to 19 and the circumstances that made the adoption and approval of the planning amendment desirable. The Minister had based his exercise of discretion on both limbs of s 20(4) and could not just rely on his conclusion about the ‘interests of Victoria’.
LOTI attacked the Minister’s conclusion, particularly as it was expressed in paragraph 23 of his reasons, that if he did not exempt himself from the requirements of ss 17-19 there would be a duplication of the consultation process and that therefore compliance with the provisions of ss 17-19 was not warranted. He concluded that ‘further consultation would be unlikely to identify any new issues, or to result in changes to the amendment’.
There was no adequate consultation as the Government had already made up its mind. On 7 February 2016, the Government announced the preferred bidder. The consultation after the announcement was not about the elevated rail design and there was no proper genuine and realistic consultation about whether the Minister should dispense himself from the requirements of ss 17 to 19 or approve the GC37 amendment. In effect, only a period of about eight days was provided in which to make submissions. The community was not told that the Minister would be exempting himself from the Act. Nor was it informed that part of the land that would be subject to the exemption and might be affected by amendment GC37 would be land that was not owned by the Rail Authority, for instance part of Girdwood Avenue, Carnegie.
Therefore, further consultation would not have been duplication of any previous consultation.
The community had not been consulted on whether an elevated rail design should be adopted. The Minister could not therefore say that further consultation was not warranted about the exemption decision and about the planning amendment. The elevated railway could not have been constructed without a planning amendment. LOTI relied on the ordinary planning scheme amendment processes by which the Minister exhibited the amendment and sought council and community written submissions, followed by oral submissions at a panel hearing.
The Minister’s statement that a public exhibition process for the amendment was not likely to identify any new issues, which were not identified during consultation on the level crossing removals, flew in the face of the concerns identified in the letters that the Councils sent to the Minister. The Councils were aware of the amendments that were being proposed and of the possibility of an exemption decision being made and yet they raised issues and concerns. They requested that their concerns in relation to noise, environment, amenity and community impact, vibration analysis, safety and cost benefit analysis be examined. They wanted those issues made available for full and open public scrutiny. It was unreasonable in the Wednesbury sense for the Minister to state that such a process was not likely to identify any new issues.
LOTI submitted that its members and affected residents lost the opportunity to make public submissions about the Project and the right to have them considered fairly by the Minister. If they had been considered by a panel conducting a hearing under s 24, the panel would have been required to comply with the principles of natural justice.
If the Minister’s conclusion that the ss 17-19 procedures would be an ‘unnecessary duplication of process’ was invalid, then the exemption could not be justified because of reliance on the ‘the interests of Victoria’ precondition. There was insufficient evidence before the Minister for him to conclude that the exemption was in ‘the interests of Victoria’.
The Minister’s decision was based to a significant extent on the ‘not warranted’ precondition and it could not be assumed that the Minister would have made the exemption decision solely on the interests of Victoria ground.
There was no urgency in the approval of the planning amendment that justified exemption from the ordinary notification processes applicable to a planning amendment. There was no evidence that the elevated rail design would deliver a more timely outcome than a standard level crossing removal, that is an ‘rail under’ solution. There had been no proper, genuine and realistic consideration of whether elevated rail was appropriate.
The Minister’s exercise of discretion under s 20(4) was so unreasonable that no reasonable decision maker could have arrived at it.
The Minister also confused and conflated two distinct issues: the first being whether the amendment application should be exempted from the notification process under ss 17-19; and the second being whether the amendment should be approved.
In support of its submissions in respect of grounds two and three, LOTI argued that the Government’s plans had changed in mid-2015, but the new plans were not made public. LXRA had decided on non-disclosure of its change of design plans for the removal of elevated rail in mid-2015 because it understood the adverse ramifications of announcing the elevated rail project publicly, or of consulting the community about the issue. LOTI pointed to the fact that on 1 March 2016, the Premier, in a radio interview, stated that the SkyRail project could not be overturned. In effect, that statement fettered the Minister’s exercise of discretion under s 20(4).
The Minister’s decision to exempt himself was an improper use of power. It was made to avoid political controversy. His exercise of discretion was clearly fettered because the exemption decision was part of the Government’s pre-determined plan to introduce a controversial elevated railway with a minimum of community consultation and objection. At the time that the Minister decided to exempt himself, the contracts had already been signed, the decision to adopt an elevated rail design was not going to be changed, and the Minister gave no proper, genuine and realistic consideration to whether he should exempt himself from compliance with ss 17-19 of the Act.
The Minister’s submissions
The Minister’s case was that he based his exercise of discretion under s 20(4) of the Act on each of the two independent bases provided for in that sub-section. Initially, LOTI’s ground one only attacked the conclusion that compliance with ss 17-19 was not warranted. The additional paragraphs resulting from the amendment to ground one sought to attack the Minister’s conclusion that the interests of Victoria made exemption from the requirements in ss 17-19 appropriate. The Minister submitted that the first paragraph of the additional particulars conceded that the Minister formed the requisite opinion, that is that ‘the decision was in the interests of Victoria’ so as to enliven the jurisdiction under s 20(4), although it then sought to characterise that conclusion as unreasonable.
The Minister relied on the statement of Ashley and Redlich JJA in the East Melbourne case[41] concerning the breadth of the Minister’s discretion under s 20(4) to decide that the interests of Victoria made exemption from the requirements of ss 17 to 19 and the regulations appropriate.
[41](2008) 23 VR 605.
The Minister submitted that it was important to take into account that Amendment GC37 was a planning scheme amendment which allowed the use and development of land for the purposes of a project without a permit under the Act but subject to stated conditions. The project involved stations, works and signal works. LOTI made no independent attack on GC37. The approval of GC37 was neither an approval of the Project, nor of the use of elevated rail nor any of the works for the Project. GC37 was neutral as to the use of elevated rail tracks. The Minister’s decision under s 20(4) was no more than a decision that the notice requirements in ss 17-19 of the Act would not apply in relation to the planning scheme amendment.
The Minister’s conclusion that exemption from the requirements of ss 17-19 would enable a prompt decision to be made on the adoption and approval of that amendment was not an unreasonable decision in the Wednesbury sense. The Minister had extensive material supporting that conclusion. The essence of the Minister’s decision was that rapid adoption and approval of the subject planning amendment was needed, in view of the considerations to which he referred.
The Minister had explained in paragraph 23 of his reasons why the decision was in the interests of Victoria and that decision had a rational basis, referring to the ‘timely delivery of a project of critical importance’. The Minister had not concluded or stated that ‘the decision was in the interest of Victoria solely by reference to the merits of the project’. He took into account various stated considerations relating to the amendment and the project and reached a conclusion that enlivened s 20(4). The Minister did not conflate the merits of the planning scheme amendment with the merits of exempting that amendment from the requirements of ss 17-19 of the Act. There was a rational and logical basis for the Minister to consider that it would be in the interests of Victoria to exempt Amendment CC37 from the requirements of ss 17-19 of the Act and hence to make the decision on that ground.
The preconditions to the exercise of discretion contained in s 20(4) are jurisdictional facts, being states of mind reached by the Minister about the preconditions. At most, on LOTI’s case, the Minister made a wrong finding of fact and that could not be the subject of judicial review. There was no legal error in the Minister deciding that the panel process was likely to be protracted and the Minister relied on the need for a prompt progression of the Project.
The Minister relied on the fact that he had no general obligation to consult. The case did not involve an assessment of the adequacy of the consultation procedures but whether the Minister’s conclusion about the preconditions was unreasonable. The introduction of an elevated rail design was a policy matter. The consultation that did occur enabled submissions to be made in respect of planning issues. Those submissions would have been duplicated if the notification provisions in ss 17-19 had been followed. The attack on the Minister’s decision was directed at a few words in paragraph 27. To the extent that that sentence involved any infelicity of expression or minor lapse, that would not provide a basis for judicial review of the Minister’s decision.
LOTI’S ground two, that alleged an improper purpose affecting the decision, could not be established. Three months of consultation occurred between the announcement of the winning design and the Minister’s decision to exercise his discretion under s 20(4). The Premier’s statement in the radio program on which LOTI relied concerned the design of the Project and not whether an exemption decision should be made.
Ground three failed for much the same reasons as did ground two. There had been no fettering of discretion.
Analysis
Ground one: Unreasonableness, irrationality or illogicality
Ground one requires consideration of the Court of Appeal decision in the East Melbourne case[42] which emphasised the width of the discretion conferred by s 20(4). The majority in that case held that the single publicly stated reason for the Minister’s decision to exempt the planning amendment from the notification process was wholly implausible and was incapable of founding a valid exercise of the exemption discretion.[43]
[42]East Melbourne Group Inc v Minister for Planning (2008) 23 VR 605.
[43]East Melbourne Case, 682 [332].
Chief Justice Warren described s 20(4) as a broad discretionary power conferred on the Minister to be exercised in the public interest.[44] It imported a discretionary value judgment made by reference to undefined factual matters confined only by the subject matter and scope of the legislation. The Minister was ‘required to strike a balance between competing factors’ and:
In determining whether to exercise the power of exemption, the minister was permitted to consider a range of factors including those of a social, economic, political, heritage and environmental character, and the present and future interests of the Victorians. These considerations are envisaged within the purpose and objectives of the Act itself, and they inform the nature of the discretionary value judgment to be made by the minister. It was for the minister to balance all of the factors to decide whether exemption was appropriate, thus replacing the ordinary scrutiny through notice provisions with scrutiny by Parliament through notice provided under s 38 of the Act.[45]
[44]East Melbourne Case 633 [112], 636 [126]. Warren CJ dissented on the outcome of the application of the Wednesbury principle to the case, but not on any issue of principle.
[45]East Melbourne Case, 646 [147].
Chief Justice Warren noted that the legislative scheme intended that, in some circumstances, the giving of notice about, and public participation in, the amendment would be limited, by the Minister’s decision under s 20(4).[46]
[46]East Melbourne Case, 636 [129].
Ashley and Redlich JJA, also emphasised the width of the discretion conferred by s 20(4), stating:
Later in these reasons, we advert to the importance which the Act attaches to the notification process. In our opinion, fairly read, the Act does not now relegate such importance to a position of lesser significance by contrast with the desirability of development. We do not see the answer to the present question in a proposition to the contrary.
On the other hand and considering the language of s 20(4), and allowing for the importance of all the specified objectives of planning in Victoria, and of the planning framework established by the Act, we do not think it can be said that a reason for exemption must necessarily be confined to the interests of Victoria in the land the subject of the proposed amendment. We think that a benefit accruing in the interests of Victoria – not being a benefit which will accrue from the subject land itself – might in some cases legitimately be relied on by the minister in making a decision to exempt. Whether reliance will legitimate in a particular case, in our opinion will be matter of fact and degree.[47]
[47]East Melbourne Case, 687 [356]-[357].
Lord Greene MR’s stated the unreasonableness ground in Associated Provincial Picture Houses Ltd v Wednesbury Corp[48] in the following terms
It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. That, I think, is quite right; but to prove a case of that kind would require something overwhelming, and, in this case, the facts do not come anywhere near anything of that kind. I think Mr. Gallop in the end agreed that his proposition that the decision of the local authority can be upset if it is proved to be unreasonable, really meant that it must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body could have come to.[49]
[48][1948] 1 KB 223 (emphasis added).
[49]Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223, 230.
In Minister for Immigration and Citizenship v Li[50] in which the High Court considered the Wednesbury principle, French CJ stated:
After all the requirements of administrative justice had been met in the process and reasoning leading to the point of decision in the exercise of its discretion, there is generally an area of decisional freedom. Within that area reasonable minds may reach different conclusions about the correct or preferable decision. However, the freedom thus left by the statute cannot be construed as attracting a legislative sanction to be arbitrary or capricious or to abandon common sense.[51]
[50](2013) 249 CLR 332 (‘Li’).
[51]Li, 351 [28].
The Chief Justice also stated:
The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker.[52]
[52]Li 351, [30].
Hayne, Kiefel and Bell JJ stated:
Whether a decision-maker be regarded by reference to the scope and purpose of the statute as having committed a particular error in reasoning, given disproportionate weight to some factor or reason illogically or irrationally, the final conclusion will in each case be that the decision-maker has been unreasonable in a legal sense.[53]
[53]Li 366, [72].
Gageler J stated:
Judicial determination of Wednesbury unreasonableness is constrained by two principle considerations. One is the stringency of the test that a purported exercise of power is so unreasonable that no reasonable repository of the very power could have so exercised the power. The other is the practical difficulty of the court being satisfied that the test is met whether if repository as administrator in the exercise of the power is legitimately informed by considerations of policy.[54]
[54]Li 376, [108].
His Honour stated that ‘judicial determination of Wednesbury unreasonableness in Australia has in practice been rare’.[55]
[55]Li 377, [113].
In this case, the Minister gave reasons why he considered that compliance with the requirements of ss 17, 18 and 19 was not warranted and why the interests of Victoria made such an exemption appropriate. If the Minister considered that either of those preconditions existed he was entitled to exempt himself from the statutory requirements. Those preconditions were said in the East Melbourne case to be jurisdictional facts.[56] Accordingly, the Minister’s conclusion could be successfully reviewed if it was established that he had formed his opinions or conclusions by an incorrect legal approach and thereby had failed to exercise his discretion validly. As the East Melbourne case established, courts have required that the formation of the decision-maker’s satisfaction, or in this case, the opinion or view, be reasonable in the Wednesbury sense.[57]
[56]See Saville v Hallmarc Constructions Pty Ltd [(2015) 47 VR 177 [55]-[62] (Warren CJ and Tate JA).
[57]East Melbourne Case (2008) 23 VR 605, 647 [183]; Minister for Immigration and Citizenship v SZDMS (2010) 240 CLR 611, 619 (Gummow ACJ and Kiefel J).
LOTI’s main argument concerned the lack of consultation both about the elevated rail design and in respect of the GC37 amendment and the Minister’s decision to exempt himself from the requirements of ss 17-19. LOTI placed primary focus on the Minister’s statement in his reasons that ‘further consultation would be unlikely to identify any new issues, or to result in any changes to the amendment’.
The Minister’s exercise of discretion concerned a planning matter or a procedural planning requirement, that is, exemption from the statutory planning requirements. He did not decide whether an elevated rail design should be adopted for the nine level crossings. That issue had been determined by February 2016.
The evidence demonstrated that the Government had decided to introduce elevated rail before the consultation of February and March 2016. In all likelihood, the consultation was unlikely to have caused the elevated design decision to be revoked. The subject matter of the formal consultation concerned principally planning and amenity issues, for example the use to be made of new public spaces that would be reclaimed beneath the elevated rail structure and other, relatively minor, amendments to, and ameliorations of, the effects of the design. The question of whether that consultation should have raised more substantive issues is in this case not a legal issue, but a political one. In this proceeding, review of the Minister’s decision to exempt the planning amendment from the notification requirements was sought, not review of the decision to adopt an elevated rail design. The Act did not require the Minister to consult before deciding to exempt himself from the requirements of ss 17-19. Section 20(5) gave the Minister a discretion whether to consult about the exercise of the discretion contained in s 20(4), but he was not obliged to do so.[58] So, this is not a case that requires an analysis of the requirements of any statutory duty of consultation.[59]
[58]Grollo Australia Pty Ltd v Minister for Planning and Urban Growth and Development [1993] 1 VR 627.
[59]Port Louis Corporation v Attorney-General of Mauritius [1965] AC 1111,1116 and R (Moseley) v Haringey LBC [2014] 1 WLR 394.
The Councils made detailed submissions to the Minister calling for further consultation. LOTI and the deponents of its affidavits did not consider that appropriate consultation occurred.
However, LXRA provided the Minister with a very detailed report about the consultation, which has been described above. It discussed the effects of the elevated rail design and other features of the Project, rather than whether an elevated rail design should be introduced. The Minister listed many of these issues in his reasons. His decision in that regard cannot be described as unreasonable, irrational or illogical.
The Draft Report referred to many matters primarily of a planning or amenities nature. In many respects it appears to be a comprehensive report. It informed the Minister that LXRA had responded to the key issues by agreeing to new initiatives, for example, minimising the bulk of the elevated railway and its potential impact on visual amenity and overshadowing, where practicable. The Department’s Brief informed the Minister that the necessary planning approvals must be in place to ensure that the first ‘planned main occupation for the project’ could commence on 28 May 2016. The exemption was to facilitate the delivery of the Project.
The Minister addressed the two preconditions provided for in s 20(4) that compliance with the provisions of ss 17-19 was not warranted and that the interests of Victoria made the exemption appropriate. He stated that the views of interested persons were well understood and that further consultation would be unlikely to identify any new issues or to result in changes to the amendment.
The Minister was entitled to make an exemption decision based on either of the two preconditions referred to in s 20(4). He relied on both of them and his approach to each needs to be considered.
The Minister’s reasons have to be read as a whole and the sentence in paragraph 27 about further consultation should not be read out of its context.[60] Read as a whole, the Minister’s finding was that the Project which included, but extended beyond the removal of the nine level crossings, was urgently needed and provided benefits for Victoria. He described the Project as of critical importance.
[60]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271-2.
The Minister’s conclusion in respect of the first precondition of s 20(4) that ‘further consultation was unlikely to identify any new issues, or to result in any changes to the amendment’ did not involve any legal error.
The Minister’s conclusion in respect of the second precondition that the exemption would enable a prompt decision to be made on the planning amendment was self-evident. The joint judgment in the East Melbourne case recognised that urgency, or perhaps the sensitivity, of a proposed amendment, may provide a permissible basis for the exercise of the discretion contained in s 20(4).[61] The elevated rail design was only one component of the Project. But, he also referred to the critical importance of the Project for improving safety, reducing congestion and contributing to a more efficient and reliable public transport system. There was no reviewable error in the Minister deciding that the exemption was required to ensure prompt approval and adoption of the planning scheme amendment, which would facilitate delivery of the Project.
[61]East Melbourne Case, 650 [192], 651 [196].
There is a conceptual difference between the exemption being in the interests of Victoria and the planning amendment being in the interests of Victoria and in the East Melbourne case the Minister had wrongly considered both at the same time. In this case, the Minster considered the exemption application and must have known that if he granted it, he would then be asked to amend the planning schemes. But that does not mean that he did not consider the exemption application separately and first. His written reasons suggest that he did make a separate decision about the exemption application.
I do not consider that LOTI has established that the Minister’s conclusions in respect of whether the consultation process was warranted or that the Project was in the interests of Victoria were so unreasonable, irrational or illogical that no minister acting reasonably could have reached them.
In summary, the Minister did not decide to adopt the elevated rail design to remove the nine level crossings. LXRA consulted with the community and affected persons about the implementation of the Project which included the elevated rail design. The consultation concerned the implementation of the Project and planning and amenities issues rather than whether elevated design was appropriate. The Minister did not consult about whether to exempt himself from the requirements of ss 17-19, but he was not obliged to by statute. His reasons for deciding to exempt himself have not been established to be unreasonable, irrational or illogical. Once he had decided to exempt himself from those requirements, he was not obliged to consult about whether to approve GC37.
LOTI has not established that the Minister’s decision was unreasonable, irrational or illogical. Ground one is not established.
Ground two: Improper purpose
The ambit of this ground was described in the East Melbourne case in the following terms:
Judicial review may be sought on the ground that the decision-maker was motivated by an improper purpose or on the ground that the decision-maker took into account an irrelevant consideration. Where the court is concerned which has conferred – as in this case- an apparently unconfined discretion on the decision-maker, the factors which that person may take into account will be unconfined save to the extent that there may be implied from the subject matter, scope and purpose of the statute, some limitation on the factors to which regard may legitimately be had. It is equally well established that an administrative act will be invalidated where its ‘initiating and abiding purpose’ is a foreign or ulterior one’.[62]
[62]East Melbourne Case, 684 [341] (Ashley and Redlich JJA); and see Sydney Municipal Council v Campbell [1925] AC 325.
LOTI contended that the Government secretly changed its crossing removal plans and adopted an elevated rail design. It submitted that those changes were conducted under a strict policy of secrecy which was intended to keep the community in ignorance of the change.
The Government, then the Opposition, did not mention any elevated rail plan during the election campaign. LOTI contended that the Government kept its plans secret to avoid political controversy. But the decision was announced on 7 February and the Minister did not make his decision until 25 May 2016 and debate and controversy occurred during that interval.
The consortium for the Project was chosen in early February 2016. Their proposal presumably involved elevated rail. I accept the evidence that the elevated rail design was developed after the design proposals were received. I do not consider that the statements that Ms Okotel attributed to Mr Devlin at the Glen Eira Council meeting in February require a different conclusion. If accepted in the terms that Ms Okotel recalled, Mr Devlin described the development of the design as having occurred over ‘the last six months but not made public’. That statement does not establish that there was an improper purpose to conceal the development of elevated rail. Rather, it indicates that the design was developed over a period.
LOTI’s Notice to Produce
During the hearing, LOTI raised an issue about the production of documents it had sought from the Minister. On 5 October 2016, LOTI’s solicitors wrote to the Minister’s solicitors seeking documents relating to the expression of interest and request for proposal stages of the Project. The Minister’s solicitors sent an interim response to LOTI’s solicitors on 6 October 2016 and a substantive response on 7 October 2016. The substantive response stated that the Minister did not have the requested documents. On 11 October 2016, two days before the trial, LOTI served a Notice to Produce on the Minister which, as counsel for LOTI explained, sought documents said to be referred to in paragraphs 8 and 9 of Mr Summers’ affidavit. Those paragraphs state:
8.The works for the Project were to be carried out by a private sector contractor determined by the Government after a confidential tender process that involved an expression of interest stage, the selection by the Government of a shortlist of bidders, a request for proposal stage involving the shortlisted bidders preparing and lodging their bids, the selection of the preferred bidder, and finally the award of the contract.
9.At both the expression of interest stage and the request for proposal stage, the State did not mandate any solution for removal of the nine level crossings or indicate any preference for the solution to be adopted. That was a matter for the bidders, with their design and construction expertise.
During the hearing, senior counsel for the Minister submitted that these paragraphs referred to stages in the tender process, not documents, and repeated his instructions that the Minister had no documents of the nature sought in the Notice to Produce within his possession, custody or power. Therefore, the Minister made no production in response to the Notice to Produce.
However, any documents relating to the stages of the Project discussed in Mr Summers’ affidavit would necessarily be in the possession, custody or power of some government department or Minister, if not the defendant Minister. Given this, senior counsel for the Minister foreshadowed that the question of relevance, and possibly issues of confidentiality and public interest immunity, would be raised if the Minister was required to coordinate the production the documents from other sections of the Government.
At the time of these discussions during the hearing, LOTI had indicated it would not require Mr Summers to attend for cross-examination and had not issued any subpoena in relation to the documents sought. When counsel for LOTI suggested that it might make an application for the Court to order the production of the documents listed in the Notice to Produce, I adjourned the hearing to allow LOTI to consider its position. When the hearing resumed, counsel for LOTI stated that it did not wish to make any application for the production of documents, but would ask the Court to draw ‘negative inferences’ against the Minister because of his failure to produce the documents. At one point, counsel for LOTI suggested that the failure to produce ‘establishes that there was an undue element of secrecy surrounding elevated rail.’
Although not expressly stated, LOTI appeared to submit that the Court should draw Jones v Dunkel[63] inferences from the Minister’s failure to produce the documents. The rule in Jones v Dunkel is well understood. As the learned author of Cross on Evidence explains, ‘failure by a party to … tender documents … may (not must) in appropriate circumstances lead to an inference that the … missing material would not have assisted that party’s case.’[64] The rule goes no further than that; it does not permit an inference to prove any element of the plaintiff’s case. Importantly, ‘the rule cannot be employed to fill gaps in the evidence, or to convert conjecture and suspicion into inference.’[65] As Windeyer J explained in Jones v Dunkel, the rule only applies where a party is required to explain or contradict something and ‘no inference can be drawn from the defendant’s silence until facts be proved requiring an answer…’[66] Because I have found that there is no substantial evidence that the Minister acted with an improper purpose or fettered the discretion that s 20(4) conferred on him, the rule in Jones v Dunkel does not assist LOTI’s case.
[63](1959) 101 CLR 298.
[64]J D Heydon, Cross on Evidence (LexisNexis Butterworths, 10th ed, 2015) 37-38 (citations omitted).
[65]Ibid, 40.
[66](1959) 101 CLR 298, 321 quoting R v Burdett (1820) 4 B & Ald 95.
Further, while it is not necessary for me to decide it, I am of the view that, had the documents listed in the Notice to Produce been appropriately called for during cross-examination or subpoenaed by LOTI, the Minister should have coordinated their production by whichever Minister, department or statutory authority had possession of them. Of course, any such production, and any eventual admission of the documents into evidence, would be subject to the questions of relevance, confidentiality and public interest immunity raised by senior counsel for the Minister.
Conclusions on Ground Two
The evidence does not establish that the Government decided in 2015 to introduce an elevated rail design, or therefore that the July and September 2015 community update publications sent to residents were misleading. The two successful bidders were announced on 7 July 2015. There is no evidence that a decision had been about elevated railway until 7 February 2016.
Mr Summer’s affidavit contained the timetable of events and he was not cross-examined. He stated that at both the expression of interest stage and request for proposal stage, the Government did not mandate any solution for removal of the nine level crossings or indicate any preference for the solution to be adopted. That was a matter for the bidders with their design and construction expertise. It was only in February 2016, when the consortium was chosen that the proposed concept design for the works of the Project were known and could be made public.
There is no evidence that the Minister played any part in the development of the elevated rail proposal. It is important to remember that elevated rail was only one part of the Project.
Ground two is not established.
Ground Three: Fettering of discretion
LOTI’s third ground invoked the principle of public law that a discretion that is fettered, for instance by the inflexible application of a policy, so that the particular circumstances of the case are not considered would be invalid. While a Minister can apply a policy, he or she must not thereby fail to have regard to relevant considerations or thereby take into account irrelevant considerations.[67]
[67]NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277, 289 [24] (Gleeson CJ).
The parties made few separate submissions directed to this third ground.
LOTI relied on the Premier’s statement in the radio interview of 1 March 2016 and the statements attributed to Mr Devlin at the Council meeting relating to the development of an elevated rail design. But, the issue in this case concerns the Minister’s exercise of the discretion to exempt himself from statutory requirements. That is not the same as the adoption of an elevated rail design. The Minister was not approving an elevated rail design.
It might be conjectured that a Minister would wish to exercise the discretion under s 20(4) to exempt himself from the requirements of ss 17-19 to assist in implementing the Government’s design proposal. But, the evidence suggests that the Minister did validly exercise his discretion by reference to the preconditions contained in s 20(4). The Department presented a very detailed brief to the Minister in connection with the exemption application. Mr Lyncgoln’s affidavit outlines the procedures adopted. He was not cross-examined. The evidence does not support the suggestion that the Minister made his decision on the basis that he was bound by a policy. Nor do his reasons.
Ground three is not established.
Conclusion
The proceeding is dismissed.
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