Lower Our Tracks Inc v Minister for Planning - [2016] VSC 803

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

---

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

---

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).

---

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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Lower Our Tracks Inc v Minister for Planning and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] VSC 803
Decision Date: 20 December 2016

CaseChat Overview and Summary

Lower Our Tracks Inc challenged the Minister for Planning's decision to amend the planning scheme to allow for the removal of level crossings by constructing elevated rail tracks. The applicants contended that the Minister's decision to exempt himself from statutory exhibition and notice requirements was unreasonable, made for an improper purpose, and fettered his discretion. The case was heard in the Supreme Court of Victoria.

The central legal issues revolved around whether the Minister's decision was unreasonable or irrational, whether it was made for an improper purpose, and if his discretion was fettered. The applicants argued that the Minister's decision to exempt himself from the statutory requirements was not in accordance with the law, as it did not comply with the mandatory requirements of the Planning and Environment Act 1987. The Minister, on the other hand, maintained that the exemption was reasonable and did not fetter his discretion, and that the decision was made in the public interest.

The Court found that the Minister's decision to exempt himself from the statutory exhibition and notice requirements was unreasonable, as it did not comply with the mandatory requirements of the Planning and Environment Act 1987. The Court held that the Minister's discretion was fettered, as the exemption effectively prevented the Minister from considering any objections or submissions from the public. The Court further found that the Minister's decision was made for an improper purpose, as it was influenced by the desire to expedite the project without proper public consultation.

The Court quashed the Minister's decision to exempt himself from the statutory exhibition and notice requirements, and remitted the matter back to the Minister for reconsideration in accordance with the law. The Court also ordered that the Minister pay Lower Our Tracks Inc's costs of the proceedings.

Orders