Magee v Boroondara City Council

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION AND PLANNING LIST

No. 4816 of 2010

ANNE MAGEE	Applicant
v
BOROONDARA CITY COUNCIL	First Respondent
and
ATHLOS NO. 4 PTY LTD	Second Respondent

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JUDGE:	EMERTON J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 September 2010
DATE OF JUDGMENT:	11 March 2011
CASE MAY BE CITED AS:	Magee v Boroondara City Council
MEDIUM NEUTRAL CITATION:	[2011] VSC 78

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ADMINISTRATIVE LAW – Planning – Application for leave to appeal from VCAT – Grant of planning permit – Pre-application meetings between the developer and Council officers – meeting between the developer and councillors – Apprehended bias – Pre-judgment – Prior association – Procedural fairness – Opportunity to test evidence – Findings not open on the evidence – Adequate alternative remedy – Planning and Environment Act 1987 (Vic) Pt 4 – Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 97, 98, 102.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T.P. Mitchell	Planning & Property Partners Pty Ltd
For the First Respondent	No appearance
For the Second Respondent	Mr P. O’Farrell	Best Hooper

HER HONOUR:

Issues and proceedings

Mrs Magee is the owner-occupier of a house located at 349 Union Road, Balwyn. She, amongst others, objected to an application made by the second respondent (‘the developer’) for a permit to construct nine dwellings on adjoining land at 347 Union Road, Balwyn. Notwithstanding the objections, on 12 May 2010, the respondent authority, Boroondara City Council, issued a Notice of Decision to Grant a Permit in respect of the development.

On 17 June 2010, Mrs Magee applied to the Victorian Civil and Administrative Tribunal under s 149B of the Planning & Environment Act 1987 (‘the Act’) for declarations that the Notice of Decision was issued in breach of the rules of natural justice and that the Council had failed to properly consider the objections it received. Mrs Magee’s case before the Tribunal was that communications between the Council and the developer to the exclusion of objectors gave rise to the apprehension of bias.

At the hearing before the Tribunal, Mrs Magee sought a more detailed set of declarations to the effect that Council officers collaborated with the developer in preparing plans for the permit application, participated in ex parte communications and had extensive prior dealings with the developer, which resulted in a recommendation by a Council planner to approve the permit application. Mrs Magee contended that this amounted to a denial of procedural fairness, and that Council officers acted incompatibly with her right to have the permit application decided by a competent, independent and impartial authority after a fair and public hearing. She also contended that Council’s decision to recommend approval of the application was invalid and unlawful by reason of infringements of the Charter of Human Rights and Responsibilities 2006, in that there was a failure to give proper consideration to her right to privacy and her right to a fair and public hearing.

The Tribunal declined to make the declarations sought. Relevantly, relief was refused on the basis that apprehended bias had not been established and, even if it had been, in the exercise of its discretion the Tribunal would have withheld the relief because there was an alternative remedy available to Mrs Magee, namely merits review under s 82 of the Act.

Mrs Magee now seeks leave to appeal against the order of the Tribunal made on 9 August 2010 dismissing her application for declarations under s 149B of the Act.

Mrs Magee has prepared a draft notice of appeal raising five grounds of appeal from the Tribunal’s orders and the reasons for decision. In essence, Mrs Magee contends that she was denied procedural fairness by the Tribunal in that the Tribunal treated as evidence submissions that were made by the Council and denied Mrs Magee the opportunity to cross-examine Council officers about that evidence (Ground 1); the Tribunal made extensive findings on the basis of matters that were not in evidence and the findings were therefore not open to the Tribunal (Ground 2); the Tribunal did not properly consider the basis upon which Mrs Magee contended that there was a reasonable apprehension of bias by the Council (Grounds 4 and 4B); and the Tribunal misdirected itself as to the exercise of discretion in that it limited its consideration to whether there was an alternative remedy (Ground 5).

The criteria for the grant of leave to appeal are set out in Secretary of the Department of Premier and Cabinet v Hulls.[1] Relevantly, the applicant must identify a question of law arising out of the Tribunal’s decision, but need not establish that the Tribunal erred. Rather, the applicant must establish that the Tribunal’s decision is attended by sufficient doubt to justify the grant of leave. The public or general importance of a question may also be a relevant consideration. However, the Court of Appeal stressed that whether leave should be granted must always depend on the justice of the particular case.
[1][1999] 3 VR 331.

For the reasons that follow, the Tribunal’s decision is not attended by sufficient doubt to warrant the grant of leave. Moreover, allowing the Tribunal’s decision to stand will not result in substantial injustice to Mrs Magee. The development represents a significant departure from the scale and density of the surrounding dwellings. Mrs Magee’s complaint derives from her objection to the construction of a very large (and what she considers to be an inappropriate) development right next to where she lives, and the Council’s failure to give her and others who will be affected by the development the attention that was given to the developer. Given the scale of the development, the Council was required to sensitively manage the consultation process and to give genuine consideration to the objections of residents. Although the Council duly considered the objections it received, it seems to have assumed a familiarity with its processes for handling permit applications where there was none, and this has resulted in misunderstandings and misgivings about the assessment process.

Nonetheless, Mrs Magee has available to her a full merits review of the Council’s decision and, whatever the shortcomings of the Council’s processes (or, more pertinently, its communication of its processes), Mrs Magee will have an opportunity on review to satisfy herself that the development has been properly assessed against the planning scheme and relevant State and local policies.

Background

Mrs Magee’s application to the Tribunal was based on conduct by Council officers and councillors during the lead up to and in the course of the permit application process that she alleges give rise to an apprehension of bias by the Council. That apprehension is said to arise from a combination of factors established by the course of conduct of the Council and its officers, namely:

(a)pre-judgment;
(b)ex parte communications between the Council and the developer;
(c)prior association between the Council and the developer;
(d)being a judge in one’s own cause.[2]

[2]Applicant’s written submissions, 29 October 2010, [44].

A significant part of Mrs Magee’s complaint arises from the existence of ‘pre‑application meetings’ between the developer and officers of the Council, including the Council’s Statutory Planning Co‑ordinator, Mr Jon Harper. Documents were put before the Tribunal by Mrs Magee evidencing the pre‑application meetings. They reveal the following:

(a) On 3 September 2009, a representative of the developer, Helen Vais, sent an email to Jon Harper thanking him for taking time to meet with her and her architect “a few weeks ago” in relation to the development. Ms Vais informed Mr Harper that she had asked her architect to prepare some plans for Mr Harper showing proposed layout, elevations, site coverage et cetera, and expressed the hope that she (and presumably also her architect) would be able to meet with Mr Harper again “either late next week or early the following week”. The email concluded, “Thanks again for your time and constructive input and advice on our proposal.”

(b) On 2 October 2009, the developer’s architect, Mr Bahramis, sent an email to Mr Harper referring to a meeting with “Sylvia” (presumably, Ms Sylvia Georges, the Council’s Urban Designer) and Mr Harper on Friday, 18 September. Mr Bahramis attached updated preliminary town planning drawings for Mr Harper’s comment and observed that they had been amended to take into account Mr Harper’s comments at the meeting. Mr Bahramis said the amendments included changes to the roof profile “to allow the building to sit more comfortably in the neighbourhood character whist [sic] remaining contemporary in design”, pedestrian friendly entries at footpath level, and the deletion of Unit 9 so that the development comprised nine units instead of ten.

Mr Bahramis also advised Mr Harper that he had spoken to the Council’s arborist, Stuart Campbell, who had advised the developer to submit its preferred options in relation to the relocation or replacement of a tree. Finally, he indicated that, in relation to car parking, the developer’s traffic engineers would address any “design traffic issues”. Mr Bahramis concluded, “We await your further comments prior to formally submitting for a permit. Obviously, our client would like us to submit as soon as possible.”

(c) Three days later, on 5 October 2009, Jon Harper sent an internal email to the Council’s Urban Designer, Sylvia Georges, in the following form:

Hi Sylvia
I like the skillion roof!

(d) Later that day, Ms Georges responded to Mr Harper to comment on “the modifications listed” and, in particular, the roof profile. She raised a possible need for a couple of smaller skillion roofs to certain sections of the mass, while commenting that the skillion roof at the upper level would enhance the streetscape skyline.

(e) On 7 October 2009, Mr Harper sent an email to Mr Bahramis in which he alerted Mr Bahramis that “Sylvia” had some additional comments that could probably be dealt with in the course of the application, and suggested that Mr Bahramis submit the application. He concluded, “Please send me an email on the day you lodge.” Mr Bahramis responded approximately half an hour later, thanking Mr Harper and advising that they were hoping to lodge within the next couple of weeks. He concluded, “Appreciate your help.”

The developer’s application for a planning permit dated 16 November 2009 in respect of the development was also in evidence before the Tribunal. One of the pro forma questions on the application was whether there had been a pre‑application meeting with the Council’s planning officer. The developer answered “yes”, with “John Harper”. The date of the pre‑application meeting was given as June or July 2009.

On 24 November 2009, following the lodgement of the permit application on 16 November, Ms Georges sent an internal email to another Council officer, Marjorie Kennedy, in relation to the development. Ms Kennedy was the Council planner charged with evaluating and reporting to the Council on the permit application. Ms Georges indicated to Ms Kennedy that there had been a number of discussions with the architects at the pre‑application stage, which appeared to have resulted in “notable improvements to the building mass and overall form”. She expressed the view that the deletion of one of the units and the attempt to reduce the visual bulk as perceived from adjoining properties by dropping the ground floor to the rear would assist in reducing any potential impact on neighbouring properties and that with the changes proposed to the roof form of the upper level and the stepping in mass and strong articulation, the building form would be a positive addition to the streetscape. Although she had previously suggested that more skillion roofs be incorporated at lower levels, having seen the 3D model she felt satisfied that the building composition had achieved an acceptable level of cohesion and unity. She had one last suggestion to the architect, which related to the palate of materials and finishes selected. She thought the architect might need to re‑visit and, where possible, simplify the palate through the deletion of some finishes.

On 14 December 2009, Anthony Di Pasquale, Co‑ordinator–Statutory Planning for the Council, wrote to the developer requiring the provision of further information to enable an assessment of the application.[3] This included information about overall height, wall heights and the height of the front blade, and clarification as to whether onsite waste was to be collected privately or by Council. The letter stated that following a preliminary assessment of the application, a number of issues had been identified, including issues of compliance with Council’s Residential Design Policy and ResCode.
[3]The letter states that the request is made ‘pursuant to Section 54B of the Planning and Environment Act’, although the power is in fact contained in s 54.

In accordance with its usual practice, a Council officer, in this case Ms Kennedy, assessed the proposed development against State and local planning policies and prepared a detailed planning report on the proposed development (the ‘officer’s planning report’).

The officer’s planning report was in evidence before the Tribunal. It refers to discussions with the architect at the pre‑application stage resulting in “notable improvements” to the building mass and overall form. Some of the wording in Ms Georges’ email to Ms Kennedy on 24 November is set out verbatim, with the conclusion that the application is supported by Council’s Urban Designer. The report then contains a lengthy section headed “Analysis” which considers strategic justification, neighbourhood character, site coverage and permeability, open space, traffic and access, car parking, landscaping and tree retention, energy efficiency, overshadowing and overlooking and, finally, responses to issues raised in submissions, including overdevelopment of the site, devaluing surrounding properties and car parking. The report states that the proposal is consistent with the broad objectives of State and local planning policies and, for the most part, with the objectives and standards of Council’s Residential Design Policy and clause 55 (ResCode) of the Boroondara Planning Scheme. The built form of the proposed building is considered to be appropriate and the site able to accommodate a high density housing development with an apartment‑style building. The report concludes that the proposal has “maximised on‑site amenity without unreasonably affecting the amenity of surrounding properties”.

Accordingly, the officer’s planning report recommended that Council resolve that a Notice of Decision to Grant a Planning Permit for the nine unit development be issued under the Boroondara Planning Scheme, subject to conditions.

On Monday, 3 May 2010, the Council’s Urban Planning Special Committee[4] met to consider a number of matters, including the officer’s planning report for the proposed development. Mr and Mrs Magee were informed about this meeting by letter dated 20 April 2010. They were advised that they could address Council on the night of the meeting and, if they wished to do so, that they should register in the foyer of the Council chamber prior to commencement of the meeting.
[4]Which I shall simply refer to as ‘Council’.

The minutes of the Council meeting were in evidence before the Tribunal. They reveal that consideration of the officer’s planning report and the proposed development was relatively protracted, in that it involved a number of motions and a number of votes. Three speakers made verbal submissions opposed to the officer’s recommendation and three speakers spoke in its favour. A motion to issue a notice of refusal to grant a permit was initially put and lost. A motion that a notice of decision to grant a permit for a smaller number of dwellings (eight) be issued was then put and lost on the casting vote of the Chair. Finally, some time after 10.28pm, a motion that Council resolve that the Notice of Decision to Grant a Permit (for nine dwellings) be issued was put and carried with seven votes in the affirmative and three in the negative.

There was further material before the Tribunal about the pre‑application meetings and the processing of the permit application, including the consideration of the permit application by the Council on 3 May 2010. This material consisted of oral and written submissions made on behalf of the Council.[5]
[5]Submissions on behalf of the Responsible Authority, 30 July 2010, [15]-[58].

The Council’s written submissions describe two pre‑application meetings: the first on 12 August 2009 and the second on 11 September 2009. The email communications on 2 October 2009, 5 October 2009 and 7 October 2009 are also documented.

In relation to the first pre‑application meeting on 12 August 2009, the submissions purport to set out Mr Harper’s instructions as to what occurred at that meeting. According to Council’s written submissions, the attendees were Mr Harper, Ms Vais and Mr Bahramis. Mr Harper advised that the planning scheme and the Council’s residential design policy would form the basis of the planning assessment. Applicable planning policies were discussed. Other discussion concerned the visual impact from the private open space of adjoining properties, vegetation removal and the appropriateness of an apartment‑style development in the location, the potential conflict between a proposed crossover and an existing street tree, the amount of private open space proposed for each unit, the number of proposed car spaces and the key elements contributing to the predominant neighbourhood character. According to Council’s submissions, the meeting concluded with Mr Harper advising that it was Council’s practice to offer a further pre‑application meeting for multi-dwelling developments with the Council’s Urban Designer to enable discussions on proposed building typology and design to take place once full elevations and site plans had been completed.

As to the second pre‑application meeting on 11 September, the Council’s submissions state that Mr Harper and Ms Georges had both instructed that they were present at that meeting, along with Ms Vais and Mr Bahramis. According to Council’s submissions, at this meeting, Mr Bahramis tabled detailed plans and Ms Georges commented on key elements of the proposed design including building height, overall building bulk, roof form and the architectural appearance of the design. Ms Georges expressed concerns about the appropriateness of the proposed flat roof and raised the possibility of deleting one unit to improve the ‘interface’ with the adjoining property to the south. She also raised the possibility of a separate pedestrian entry to proposed Unit 1 to improve ‘interface’ with the streetscape.

As to the assessment of the permit application, the Council’s submissions state that the permit application was allocated to Ms Kennedy for assessment, and that Ms Kennedy did not attend any of the pre‑application meetings, was not supervised by Mr Harper or Ms Georges and was a team member in another of the Council’s statutory planning teams co‑ordinated by Mr Di Pasquale.

In relation to the conduct of the Council meeting on 3 May 2010, Council’s submissions state that at the meeting, presentations were made by Ms Vais, Mr Vais and Mr Northey on behalf of the developer by way of PowerPoint presentation, by Mr Magee on behalf of both himself and Mrs Magee, by Mr Magee’s solicitor in a joint presentation with Mr Magee and by the neighbour on the other side of the proposed development. Following the presentations, the recommendation in the officer’s planning report to support the permit application was adopted, with an additional condition to increase the southern setback.

The Council’s submissions also state that prior to the Council meeting, Ms Vais requested a meeting with Council to discuss the proposed development. On 28 April 2010, Ms Vais (or possibly Jim Vais) met with councillors Tragis and Bloom. At the meeting, Mr or Ms Vais presented a PowerPoint presentation entitled “Compact Community Living Through Responsible Development”. A copy of this presentation was provided to all councillors. The submissions also state that at the Council meeting, the developer made a “similar” PowerPoint presentation, also entitled “Compact Community Living Through Responsible Development”, and made submissions in support of the proposal.

The submission notes that at the time of this presentation, Ms Kennedy’s assessment of the merits of the permit application as detailed in the officer’s planning report had already been prepared, finalised and circulated, and it was available for public viewing on the Council’s website.

Tribunal’s decision

The Tribunal set out the following questions for determination:

·     Whether the discussions at the pre-application meetings gave rise to a reasonable apprehension of bias;
·     Whether the recommendation of the Council’s planner to approve the application gave rise to a reasonable apprehension of bias;
·     Whether there was a failure to give proper consideration to the applicant’s right to a fair hearing and right to privacy;
·     Whether any alternative remedy was available.

The Tribunal concluded that the pre-application meetings, some of the so‑called “ex parte communications” in the form of emails and what was alleged to have been “prior association” between the Council’s officers and representatives of the developer, did not give rise to an apprehension of bias. Amongst other things, the Tribunal noted that the Victorian Planning Provisions Practice Note entitled “Making a Planning Application for a Dwelling in a Residential Zone” prepared by the Department of Planning and Community Development encouraged developers to discuss applications with Council before they were lodged.

Secondly, the Tribunal found that the recommendation in the officer’s planning report did not give rise to an apprehension of bias because the report was not the sole matter considered by the Council. Whilst the officer’s planning report outlined the requirements of the planning scheme, summarised the objections and the internal referrals and provided an assessment against the requirements of the planning scheme, all of which was no doubt of assistance to the Council in considering the application, the Council invited and allowed submissions to be presented to it by the developer and objectors, including representatives of Mrs Magee. The Council was required by s 60(1) of the Planning and Environment Act to consider, amongst other things, all objections and other submissions received which had not been withdrawn. The officer’s planning report was not the final step in the decision-making process. The final step was the consideration and determination by the Council. The Tribunal concluded that in hearing from the representatives of Mrs Magee, the Council had accorded Mrs Magee procedural fairness.

Thirdly, the Tribunal held that there was no failure to give proper consideration to Mrs Magee’s right to a fair hearing and her right to privacy under the Charter. In fact, that had been achieved through the application of the processes mandated by the Act and under the planning scheme.

Finally, and importantly, the Tribunal decided that as a matter of discretion it should not make the declarations, because the substantive outcome sought by the declarations could be achieved by an application for review of the decision on the merits as provided for under the Act and the Victorian Civil and Administrative Tribunal Act 1998 (the ‘VCAT Act’). In the circumstances, there was an appropriate alternative remedy that had already been engaged, namely merits review.

Grounds of Appeal

It is convenient to commence by considering Mrs Magee’s contention that the Tribunal did not properly deal with her substantive complaint, namely that a fair-minded lay observer might reasonably apprehend that the Council might not bring an impartial mind to the resolution of the question of whether or not to grant a permit to the developer. If the facts of this case are not capable of supporting a finding of apprehended bias, Mrs Magee’s remaining complaints about the way in which the Tribunal dealt with her application may not be sufficient to vitiate the Tribunal’s decision, even if made out.

Grounds 4 and 4(b)

Mrs Magee contends that the Tribunal did not deal with her case on apprehended bias and made an error of legal principle in applying the test for apprehended bias. Apprehended bias was claimed to arise at two levels – in the officer’s planning report, and then in the decision of the Council itself. Mrs Magee submits that the Tribunal erred in not considering:

(a)Council bias arising from tainted advice;
(b)whether the cumulative effect of the pre‑application communications and the ex parte meetings might give rise to the appearance of bias; and
(c)the effect of the meeting held between two councillors and the developer, to the exclusion of Mrs Magee.

The factual case relied on by Mrs Magee was as follows:

(a)Council officers (including at least the Urban Designer, the co‑ordinator of statutory planning, a manager of statutory planning, and the arborist) collaborated with the developer by:
(i)having numerous contacts, including three meetings prior to any application being lodged;
(ii)suggesting the kind of developments that would acceptable on the subject land;
(iii)recommending significant changes to the form of the design;
(iv)giving ‘the nod’ when they were satisfied that the application should be lodged; and
(v)noting that some concerns still held by the co‑ordinator of statutory planning could be fixed up during the planning process.

(b)Two councillors then met privately with the developer prior to the Council’s decision.
(c)Accordingly, it was reasonable to apprehend that the planner might bring a fixed view to the task of preparing the recommendation / officer’s planning report.
(d)The Council then based its assessment of the application on the detailed and positive recommendation of the Council planner. Even if the Council approached the matter completely impartially, the planner’s pre‑judgment tainted the decision. The objectors had no chance to be heard until Council officers had approved a development proposal which Council officers had participated in creating.

Mrs Magee submits that a reasonable observer, seeing the Council’s significant involvement in the creation of the planning application, might think that the outcome – at the recommendation stage and at the decision stage – was a foregone conclusion. Mrs Magee further submits that if the apprehension of bias arose at the planner’s recommendation stage, and the Council relied entirely on the recommendation in approving the application, the bias infected the Council’s decision, however impartial it might otherwise have been. She contends that the Tribunal did not address either of these claims.

The Tribunal dealt extensively with the question of apprehended bias (by pre-judgment and prior association). However, the fact that much of the Tribunal’s analysis was centred around the two questions, “Whether the discussions at the pre‑application meetings give rise to a reasonable apprehension of bias” and “Whether the Council officer’s recommendation to approve the application gives rise to a reasonable apprehension of bias”, suggests that only the pre-application meetings and the recommendation in the officer’s planning report were taken into account on the question of apprehended bias. The listing of the issues for determination referred to above (at 28) leads to the same conclusion.

The Tribunal summarised Mrs Magee’s argument on apprehended bias as follows:

The applicant contends that a reasonable lay observer being aware that pre application meetings occurred between the permit applicant and Council officers could only but conclude that the Council would not bring an impartial mind to the decision of whether to grant a permit.
In this respect the applicant refers in particular to the discussions with the Council’s Urban Designer. The applicant suggests such discussions amounted to collaboration between the permit applicant and the Council officers, this was so because the permit applicant accepted some of the comments of the Urban Designer and prepared application plans that accorded with the Urban Designer’s recommendations.
The applicant further submitted that when the Council officers indicated their support for the plans the application was lodged. Any assessment therefore of the application by the Council officers was already predetermined and as a result any decision of the Council which relied solely on the recommendations of the Council officer could not be considered an unbiased decision.

Although this summary does not refer to ‘ex parte’ meetings and pre-application communications, I am satisfied that it deals with both the meetings and emails of which Mrs Magee complains and recognises that it is their cumulative effect that is said to give rise to an apprehension of bias. However, no mention is made of the meeting between the developers and two councillors prior to the Council meeting at which the decision to grant the permit was made. There is therefore substance to Mrs Magee’s contention that the Tribunal did not consider all of the factors that could give rise to an apprehension of bias in the permit application process.

The question for this Court is whether that failure could have made any difference to the Tribunal’s conclusion that the permit application process did not give rise to an apprehension of bias.

In Ebner v Official Trustee in Bankruptcy, the High Court of Australia established that where there is a question about the independence or impartiality of a judicial officer, the governing principle is that, subject to qualifications relating to waiver or necessity, the judicial officer is disqualified if a fair minded lay observer might reasonably apprehend that the judicial officer might not bring an impartial mind to the resolution of the question the judicial officer is required to decide.[6]
[6]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344 (‘Ebner’).

This relatively simple formulation is not always easy to apply. In Re Lusink and Shaw; Ex parte Shaw, Aickin J observed that the test may involve questions of degree and particular circumstances may strike different minds in different ways.[7]
[7](1980) 32 ALR 47, 54; see also Builders’ Registration Board of Queensland v Rauber (1983) 47 ALR 55, 69 (Brennan J); Livesey v New South Wales Bar Association (1983) 151 CLR 288, 294.

Furthermore, in Minister for Immigration and Multicultural Affairs v Jia Legeng,[8] the High Court held that the application of the Ebner principles will not be the same when a decision is vested, not in a judicial officer, but in a Minister of the Crown. In particular, Hayne J emphasised that the content of administrative law requirements in relation to bias by pre‑judgment depended upon the circumstances and that there could be no automatic application of rules developed in the context of judicial decision‑making to administrative decisions. His Honour said:

The analogy with curial processes becomes even less apposite as the nature of the decision-making process, and the identity of the decision‑maker, diverges further from the judicial paradigm.[9]

[8](2001) 205 CLR 507.

[9]Minister for Immigration and Multicultural Affairs v Jia Le Geng (2001) 205 CLR 507, 563.

His Honour went on to compare decisions taken within the judicial model with other administrative decisions and observed that:

It is critical, then, to understand that assessing how rules about bias, or apprehension of bias, are engaged depends upon identification of the task which is committed to the decision‑maker. The application of the rules requires consideration of how the decision‑maker may properly go about his or her task and what kind or degree of neutrality (if any) is to be expected of the decision‑maker.[10]

[10]Ibid 564-5.

It is necessary, therefore, to consider how a responsible authority may properly go about its task of determining permit applications and what kind or degree of neutrality (if any) is to be expected of it in the performance of this task. The question of apprehended bias, be it in the form of pre-judgment, prior association or otherwise, must be considered by reference to the statutory arrangements for the grant of planning permits by municipal councils.

The grant of a planning permit by a responsible authority is governed by Part 4 of the Act, which contains provisions describing how applications and amendments to applications are to be made and imposes notice requirements in relation to such applications. It provides for transparency in the decision-making process by requiring the responsible authority to keep a register of applications, decisions and determinations[11] and for applications and prescribed information to be made available to the public at the offices of the relevant responsible authority.[12]
[11]Section 49.
[12]Section 51.

The responsible authority largely controls the flow of information to it for the purpose of making its decision. In particular, it may require the applicant for a permit to provide it (or a referral authority) with more information before it deals with an application.[13]
[13]Section 54.

Aside from responsible authorities, Part 4 gives considerable influence to ‘referral authorities’. It requires the responsible authority to give a copy of an application to every person or body that the relevant planning scheme specifies as a referral authority.[14] If a referral authority informs the responsible authority that it objects to the granting of the permit, the responsible authority must decide to refuse to grant the permit.[15]
[14]Section 55.
[15]Section 61(2).

The status and role of objectors is also described in Part 4. Any person who may be affected by the grant of the permit may object to its grant.[16] An objection must be made in writing stating the reasons for the objection and how the objector would be affected by the grant of the permit.[17] Copies of objections are to be made available for inspection at the responsible authority’s offices until the end of the period during which an application may be made for review of a decision on the application.[18]
[16]Section 57.
[17]The responsible authority may reject an objection it considers has been made primarily to secure or maintain a direct or indirect commercial advantage for the objector: s 57(2A).
[18]Section 57(5).

The matters that can be taken into account by a responsible authority when deciding a permit application are wide. Section 60 sets out the matters that the responsible authority must consider before deciding an application, including the relevant planning scheme and objectives of planning in Victoria, any objections or other submissions received, the comments of any referral authority, as well as any significant effects which it considers the development may have on the environment or the environment may have on the development. The responsible authority may take other matters into consideration. These include “any other strategic plan, policy statement, code or guideline which has been adopted by a Minister, government department, public authority or municipal council”[19] and “any other relevant matter”.[20] The responsible authority therefore has a broad discretion as to how it informs itself in relation to the merits of the permit application. Part 4 makes provision for the development proposal to be amended more than once during the course of this process.[21]
[19]Section 60(1A)(g).
[20]Section 60(1A)(j).
[21]Sections 50, 50A, 57A.

The responsible authority may decide to grant a permit or to grant a permit subject to conditions, or it may refuse to grant a permit “on any ground it thinks fit”.[22] A permit may be granted subject to any condition that it thinks fit.[23]
[22]Section 61.
[23]Section 62(2).

It is apparent that the decision-making process in respect of a permit application diverges markedly from the judicial paradigm. Council does not sit ‘in judgment’ upon planning permit applications, but assesses them against a variety of measures, having regard to information obtained from a number of sources. The process may involve a simple progression from application to decision, or it may involve extensive consultation with other public authorities, the developer and interested persons, resulting in an iterative assessment and approval (or, ultimately, ‘disapproval’) process.

In my view, these statutory arrangements reflect the fact that one of the important functions of a municipal council is to facilitate the appropriate development of land within the municipality in accordance with relevant law and policy. It is not foreign to Council’s role to assist developers to make applications that comply with the requirements of the relevant planning scheme and the raft of policies contained or referred to in it. So much is recognised in the Victorian Planning Provisions Practice Note referred to by the Tribunal, “Making a planning application for a dwelling in a residential zone”, dated December 2001. The Practice Note encourages applicants to discuss permit applications with the council before lodging, on the basis that “[p]utting time into pre-application consultation can save time and money later.” The Practice Note suggests that meeting with the council can help the developer to understand the opportunities and limitations of the site, new provisions and local policies and the implications of the zoning of the land, features of the neighbourhood that should be ‘carried forward’ in the design and the approach that the council has taken to similar applications. That is not to say that the consultation process will necessarily result in an approval. The Practice Note explains:

Pre‑application consultation with council can identify any fundamental problems with your proposed design approach in relation to the residential development provisions or local planning policy. However, general advice about your design approach should not be mistaken for ‘in principle’ support for your development. The role of council is to assess whether your development will achieve the outcome sought by its planning scheme, taking into account any comments of neighbours and referral authorities.

In my view, the process of pre-application consultation is consistent with the powers and responsibilities of a municipal council acting as responsible authority under Part 4 of the Act. There was nothing unusual or untoward in Mr Harper and Ms Georges meeting with the developer before the permit application was lodged, or in Mr Harper and Ms Georges making suggestions as to how the development could be modified to best accord with the requirements of the planning scheme and ResCode. The suggestions that the roof shape be modified so as to better reflect neighbourhood character, that one of the ten units be deleted to reduce bulk, and that pedestrian access to the units be improved and so on, formed part of this process. These suggestions were, in my view, unexceptional and the assistance given by Council officers did not amount, as Mrs Magee suggests, to participating in “creating” the development application.

Moreover, as the Tribunal correctly pointed out, information concerning the planning matters raised by Mr Harper and Ms Georges was contained in the officer’s planning report which Mrs Magee was afforded an opportunity to comment on, correct or contradict in her submissions to Council.

In my view, a fair-minded lay observer would not reasonably apprehend from the pre-application meetings and communications that Council officers and, by extension, the Council, might not bring an impartial mind to its consideration of the permit application.

Viewed in this context, Mr Harper’s suggestion that the developer’s architect let him know when the application had been lodged, and his indication that any residual planning issues could be sorted out in the course of the assessment process, do not give rise to an apprehension of bias. In my view, a fair-minded observer would consider these comments to be benign.

As for the officer’s planning report itself, it appears to me to comprehensively and cogently deal with the planning issues that were relevant to the decision that the Council was required to make. The fact that there were communications between the author of the report and Mr Harper or Ms Georges about the merits of the application is of no consequence, given the nature of the process. One would expect the officer undertaking the planning assessment to take advice about the proposal from specialists within the Council such as the Urban Designer. Indeed, the report contains a section called “Internal referrals”, which outlines comments on the application from the Council’s arborist and officers responsible for traffic, infrastructure and parks and gardens, as well as the Urban Designer.

Significantly, the officer’s planning report deals with the proposed development in its entirety and it does so in respect of all applicable planning policies. It goes far beyond the issues of roof shape, number of units, setbacks and the provision of pedestrian access, which are the matters that were allegedly the subject of the ‘collaboration’ between the developer and Council officers. Having regard to the officer’s planning report as a whole, I do not consider that a fair-minded observer would apprehend that the planner pre-judged the application and that her report was ‘tainted’.

In my view, there is no basis for the proposition that the officer’s planning report was ‘tainted’. Accordingly, the Tribunal did not err when it did not have regard to Council bias arising from ‘tainted’ advice. The officer’s planning report was unremarkable, as to both its form and its content.

As to the proposition that a reasonable observer, seeing the Council’s “significant involvement in the creation of the planning application” might think that the outcome – at the recommendation stage and at the decision stage – was a foregone conclusion, the evidence of what occurred at the Council’s meeting tells against any such conclusion. Although the officer’s recommendation to grant a permit was ultimately adopted by the councillors present at the Council meeting, this occurred after objectors, including Mrs Magee, had had an opportunity to make their submissions, and the ultimate adoption of the recommendation occurred after alternative motions were put and voted on. Furthermore, the officer’s recommendation was not adopted wholesale: Council ultimately resolved to impose an additional condition on the permit. On the evidence before the Tribunal as to what occurred at the Council meeting, the outcome of the developer’s application was not a foregone conclusion.

However, there is substance to Mrs Magee’s complaint that the Tribunal did not consider the effect of the meeting between the developer and two of the councillors who voted on the permit application at the Council meeting.

The Tribunal considered the question of pre‑judgment by councillors having regard to the decisions in Livesey v New South Wales Bar Association,[24] Laws v Australian Broadcasting Tribunal[25] and R v South Australian Planning Commission; ex parte City of Burnside.[26] It noted that members of the Council were not involved in the pre‑application meetings and stated that it was unable to conclude that being made aware by the officer’s planning report that the Urban Designer had had a pre‑application meeting with the developer would lead the councillors to bring anything other than an unprejudiced and impartial mind to the resolution of the issues.[27] The Tribunal said that unlike the situation in Burnside, there was no discussion or resolution by the decision‑makers without the input of the objectors.
[24](1983) 151 CLR 288.
[25](1990) 170 CLR 70.
[26](1987) 45 SASR 487 (‘Burnside’).
[27]The Tribunal stated that in this respect it considered that a fair minded observer would realise that the officer’s planning report was a recommendation based on the planner’s professional expertise having regard to the professional expertise of those within the organisation that the application had been referred to.

In fact, this was not the case. The Tribunal was informed by the Council that two councillors – councillors Tragas and Bloom – met with the developer prior to the Council meeting and were shown a presentation that was “similar” to the one shown at the Council meeting. Both councillors subsequently voted in favour of issuing a permit to the developer.[28]
[28]The minutes of the Council meeting record that the motion to grant a permit in accordance with the recommendation was passed by seven votes to three. If councillors Tragas and Bloom had not voted, the motion would still have been passed. Had they voted against the motion, it would have been a question of who held the casting vote. The fate of the second motion, to approve a slightly smaller development, might also have hung in the balance. The votes of councillors Tragas and Bloom were therefore important to the decision-making process.

The position of local councillors as members of the community that they represent and as decision-makers wielding significant power in local government decisions, particularly in relation to planning, is not an easy one. The hybrid nature of the councillor’s role can give rise to conflicts and tensions. Local government is ‘grass roots’ politics; there is little or no buffer between councillors and the public. Councillors can and do inform themselves about community concerns and issues affecting the municipality by speaking to residents and people with an interest in the issue; as a result, they regularly speak to interested persons about issues that may ultimately become the subject of formal decisions by Council. Although communications about pending planning decisions should be treated by councillors with some caution, councillors are liable to be approached and ‘button-holed’ about such matters by interested persons, especially objectors. The question of apprehended bias as a result of pre-judgment must therefore be considered having regard to the role of a local councillor.

Kaye J helpfully analysed the case law on the question of pre-judgment in relation to municipal councillors in Winky Pop Pty Ltd v Hobsons Bay City Council.[29] His Honour extracted the following principles from the judgment of Sopinka J in the Supreme Court of Canada in Old St Boniface Residents Association Inc v The City of Winnipeg and the St Boniface-Saint Vital Community Committee,[30] which was followed by Vincent J in Bycon Pty Ltd v Moira Shire Council[31] and by Zeeman J in R v West Coast Council; Ex Parte Strahan Motor Inn (A Firm)[32]:

(1)In determining whether there was prejudgment on behalf of a councillor, it must be borne in mind that councils are democratically elected, and that councillors necessarily carry out political and legislative roles. Accordingly, a councillor is not necessarily disqualified from participating in a decision because the councillor, previously, has held and expressed views on the matter in question.
(2)The appropriate test, taking into account the political and legislative nature of the role of a councillor, is whether the councillor, on the matter in question, is open to persuasion, notwithstanding his or her previously held and expressed views on the subject. In other words, to establish that a councillor is disqualified from participating on a decision on the basis of prejudgment, it must be shown that the councillor’s views were so demonstrably fixed that they were not open to being dislodged by reason or argument.
(3)It is not necessary to prove actual prejudgment on behalf of a councillor. It is sufficient if it is made to appear that a fair minded and informed member of the public might entertain a reasonable apprehension that the councillor was not open to persuasion on the matter in question, because of the councillor’s previously held and expressed views on the matter, or because of the councillor’s previous involvement in the issue in question.

[29][2007] VSC 468, [44].

[30](1990) 75 DLR (4^th) 385.

[31][1998] VSC 25.

[32](1994) 4 Tas R 411.

In the present case, the two councillors in question were among the seven councillors who voted to grant the permit. However, it was open to the Tribunal to conclude that a fair minded and informed member of the public would not entertain a reasonable apprehension that the councillors in question were not open to persuasion or that their views were so demonstrably fixed that they were not open to being dislodged by reason or argument. It bears repeating that the Council meeting at which the decision to grant a permit was made was a lengthy one at which competing submissions were made to the ten councillors present and a number of motions, including approving a slightly smaller development, were put and voted on.

I have considered the decision of the Supreme Court of South Australia in R v South Australian Planning Commission; Ex parte City of Burnside,[33] in which Olsson and Legoe JJ found the conduct by the Chairman of the South Australian Planning Commission and/or his colleagues in the handling of a subdivision application “as to which they were required to act in a judicial manner”[34] to give rise to apprehended bias. In that case, there had been a regular processing of an initial application, which was refused, following which the Chairman entered into an informal dialogue with the applicant’s representative in the absence of further application “and appears to have arrived at least at an understanding with that representative as to what would probably be acceptable” to the Commission.[35] The applicant then produced a revised concept and submitted an informal further proposal to the Commission. The Commission considered the proposal without notice to or consultation with any other interested party and resolved to inform the applicant that the proposal represented an appropriate development of the subject land in a way that overcame the Commission’s concerns and that favourable consideration would be given to the application. The Chairman thereafter both convened and chaired a meeting with the Council – as an interested party – without disclosing that the resolution had been passed, much less that the Commission had approved the concept in principle without prior input from the Council. The Commission’s conduct, to use the words of Olsson J, smacked of attempting to ‘sell’ a fait accompli to Council. In these circumstances, his Honour said:

No doubt there can be little objection voiced at officers of the SAPC tendering general advice to prospective applicants as to strategies which may or may not be likely to commend themselves to the planning authority having regard to its previous approaches to specific problems.
But there is a world of difference between that type of situation and a member of an administrative tribunal who is required to act judicially descending into what has aptly been described as the dust of the arena and being seen to tender advice to an actual or potential applicant in the absence of other parties having a legitimate and possibly adverse interest.[36]

[33](1986) 45 SASR 487 (’Burnside’).

[34]Ibid 503-4. The South Australian Planning Commission had functions which included, according to Olsson J, discharging “quasi-judicial functions related to the consideration of applications for planning authorisation and the granting and refusal of such authorisations.” (499-500)

[35]Ibid 504.

[36]Ibid 504.

On the evidence before the Tribunal, none of the councillors “descended into the dust of the arena” to tender advice to the applicant. Two of them met with the developer to hear a presentation. By then, the application had been lodged and considered by Council officers. The officer’s planning report had been completed and was publicly available on the Council’s website. There was then a public meeting of the Council at which objections were heard, as well as the developer’s submissions, and three separate motions were put and voted on. Importantly, it was not submitted by Mrs Magee that the fact of the meeting between councillors and the developer meant that the councillors’ views were so demonstrably fixed that they were not capable of being dislodged by reason or argument or that they were not open to persuasion.

Councillors should be cautious about meeting privately with persons involved in a permit application immediately prior to a meeting convened for the purpose of voting on the application. However, I do not consider that the councillors’ attendance at a presentation given by the developer would give rise in the mind of a fair minded observer to an apprehension that the Council might not consider the permit application in an impartial and unprejudiced way.

For these reasons, although the Tribunal did not give attention to the meeting between the councillors and the developer in its consideration of apprehended bias, this would not, without more, have required it to reach a different conclusion.

In my view, Grounds 4 and 4B are not made out.

Ground 1

Mrs Magee contends that the Tribunal’s decision was made in consequence upon a hearing conducted in contravention of ss 97, 98(1) and 102 of the VCAT Act. These provisions contain basic procedural requirements that the Tribunal must observe:

· Section 97 requires the Tribunal to act fairly and in accordance with the substantial merits of the case in each proceeding;

· Section 98(1)(a) mandates compliance with the rules of natural justice;

· Section 102 requires the Tribunal to allow parties a reasonable opportunity to call evidence and cross‑examine witnesses.

Mrs Magee relies on Daynes v Public Advocate[37] for the proposition that if the Tribunal fails to comply with ss 97, 98 or 102 of the VCAT Act in conducting a hearing, the Tribunal’s decision will be vitiated by error.
[37][2005] VSC 485, [33], [36].

The basis for the complaint in Ground 1 is the manner in which the Tribunal took evidence from the Council relating to the pre‑application meetings. Although a number of documents were tendered by Mrs Magee in relation to the pre‑application meetings, the Tribunal also relied upon descriptions of those meetings advanced in Council’s written submissions and in oral submissions at the hearing. Counsel for Mrs Magee objected to assertions of fact being made from the Bar table and to their admissibility.[38] However the Tribunal ruled the assertions to be “part of the submission” and described them as “information for me”.[39]
[38]Transcript of Proceedings, Magee v Boroondara City Council (VCAT, P1672/2010, Jeanette G. Rickards (Acting Deputy President), 12 October 2009) 71.5 – 72.21.
[39]Ibid 72.22-24.

In its reasons, the Tribunal dealt with this issue as follows:

The Council indicated it did not intend to call any witness. The Tribunal considered it sufficient for the purposes of the hearing that the Council provide by way of submission the dates and names of the persons who attended the pre‑application meetings.
The applicant was critical of the failure of the Council to call as witnesses the persons who attended the pre‑application meetings to give evidence and to make them available for cross examination. It was only in written reply that the applicant referred to section 102 Victorian Civil and Administrative Tribunal Act 1998. It is a matter for a party before the Tribunal to decide whether or not it wishes to call witnesses and it is a matter for the Tribunal as to the weight it gives to either evidence if called, or submissions. At no time did the applicant indicate it wished to call any of the persons said to have attended the meetings.
The Tribunal was provided with various plans that it was said were presented at the pre‑application meetings. These plans were presented by the permit applicant following a request prior to the hearing from the applicant. In indicating the dates of the pre‑application meetings, as advised to me, I have described the plans. I have also indicated the people who participated in the meetings. This information was provided to me, as stated above by Ms Marcus from her instructions from the Council and confirmed by Ms Quigley for the permit applicant.[40]

[40]Magee v Boroondara City Council [2010] VCAT 1323, [8] – [10].

Mrs Magee contends that without the attendance of Council’s witnesses, she was denied an opportunity to test the matters advanced on instructions by the Council. She submits that the Tribunal was not entitled to inform itself in the manner that it did without giving her the opportunity to test the evidence: that amounted to a contravention of s 102 of the VCAT Act and a denial of procedural fairness. While the Tribunal was entitled to inform itself as it saw fit, it was nevertheless bound by s 98(1)(a), which required it to accord the parties natural justice.

Furthermore, Mrs Magee says that she was denied an opportunity to inspect documents held by the Council that might have been critical to her case. During the course of the Tribunal hearing, Mrs Magee called for the Council to produce its file for the planning application. The Tribunal was initially inclined not to rule on the call, but when counsel for Mrs Magee pressed for a ruling, the Tribunal refused to order production of the file.[41]
[41]Transcript of Proceedings, Magee v Boroondara City Council (VCAT, P1672/2010, Jeanette G. Rickards (Acting Deputy President), 12 October 2009) 18.5 – 21.3.

Mrs Magee submits that the cumulative effect of the contraventions of ss 98 and 102 was that the Tribunal failed to conduct the hearing fairly and in accordance with the substantial merits of the case, in breach of s 97. Having failed to observe these three limitations on its power to conduct proceedings, the Tribunal acted in excess of its jurisdiction.

It is convenient to commence by considering s 102(1) of the VCAT Act, which requires the Tribunal to allow a party a reasonable opportunity, amongst other things, to cross‑examine witnesses. In this case, no witnesses were called, as the Council chose to present the (fairly minimal) evidence it considered relevant – when the meetings took place, who attended and broadly what was discussed, as well as whether the officer who prepared the officer’s planning report was answerable to the officers who met with the developer – by way of submission. It was, however, made clear that the information was obtained from persons who could have been called to give evidence and been made available to be cross‑examined by Mrs Magee.

Section 102(1)(b) accords a statutory right to “examine, cross-examine or re-examine witnesses” (emphasis added). In respect of cross-examination, it presupposes that the relevant persons will have been called and have given evidence as witnesses in the proceeding. However, the Council called no witnesses, and chose instead to rely on the skeletal factual scenario contained in its submissions.

In my view, nothing in s 102 of the VCAT Act requires a party to call a witness so that another party may cross-examine him or her. The Tribunal’s conclusion in paragraph 9 of its reasons is correct: it is a matter for a party before the Tribunal to decide whether or not it wishes to call witnesses and it is a matter for the Tribunal as to the weight it gives to either evidence if called, or to submissions. In my view, s 102 does not assist Mrs Magee.

That does not, however, dispose of the question of natural justice. The Tribunal’s power under s 98(1)(c) of the VCAT Act to “inform itself on any matter as it sees fit” does not relieve it of the duty to accord procedural fairness to parties. As Balmford J observed in Clean Ocean Foundation Inc v Environment Protection Authority,[42] s 98(1)(c) confers a privilege that is “to be exercised with care, and remembering always that the Tribunal is … bound by the rules of natural justice”. The question remains as to whether the Tribunal failed to accord Mrs Magee procedural fairness in informing itself about certain factual matters on the basis of submissions, when Mrs Magee did not have the opportunity to test those matters.
[42](2003) 20 VAR 227, [27].

In this respect, Mrs Magee relies on the decision of Smith J in Daynes v Public Advocate,[43] in which his Honour considered the application of ss 97, 98 and 102 of the VCAT Act in relation to the hearing of a guardianship application under the Guardianship and Administration Act 1986 (Vic). The plaintiff, Ms Daynes, provided the Tribunal with a medical report supporting the argument that her capacities were such that she did not need a guardian and made it clear that she wanted the doctor to be called to give evidence before the Tribunal. The nature and extent of Ms Daynes’ disability was squarely in issue. However, the Tribunal responded that it had read the relevant report along with the other medical reports and that it did not wish to take evidence from any of the doctors in question. In this context, Smith J observed that the guardianship jurisdiction was essentially a protective jurisdiction and that, because of the nature of the jurisdiction, it was not common practice for doctors or specialists to be called to give evidence. It was understandable that such a practice might be adopted in the exercise of powers given by s 98(1)(b), (c) and (d) and it was consistent with the non‑adversarial approach taken to guardianship list proceedings. However, his Honour concluded that in the case before him, ss 97, 98 and 102 required a different course to be taken. Where there was a challenge to the guardianship order and conflict of expert opinion, it was difficult to maintain a non‑adversarial approach whilst ensuring that the statutory procedural requirements, including natural justice, were met. Particular care had to be taken by the Tribunal to comply with the statutory requirements where it was sought, on behalf of the person in respect of whom a guardianship order had been made, to challenge that order and there was a conflict of expert opinion.[44]
[43][2005] VSC 485.
[44]Ibid [34].

In City of Brighton v Selpam Pty Ltd,[45] Vincent J held that the Planning Appeals Board erred in refusing an application by a responsible authority to cross‑examine the writer of a letter supporting a proposal. His Honour approached the question through the prism of the requirement to accord procedural fairness. He said that while the task of determining whether in any individual case there had been adequate compliance might often present substantial difficulty, it was clear that the minimum requirements enumerated by Lord Loreburn LC in Board of Education v Rice[46] had to be satisfied. These involved, amongst other things, the provision of an adequate opportunity to parties in dispute to challenge or contradict material advanced against them. His Honour then said:

However, what may be regarded as an adequate opportunity in any given case must be dependent upon a whole range of factors. These would include consideration of such matters as the nature of the dispute and the tribunal before which it arises, the character of the evidence or material involved, the manner in which the material has been adduced before the tribunal, the way in which the tribunal has endeavoured to inform itself, the significance of the evidence or material in the determination of the dispute, and of course, the status of the body before which the dispute has arisen as an expert tribunal.[47]

[45][1987] VR 54.

[46][1911] AC 179, 182 (cited ibid 59).

[47][1987] VR 54, 59.

His Honour observed that it did not follow of necessity that the only method of challenge or contradiction which would be regarded as acceptable was that established by a capacity to cross‑examine the author of any such material. However, where a capacity to answer material effectively was unduly limited by an inability to cross‑examine, then the refusal to permit such a technique to be adopted might well constitute a failure to comply with the rules of natural justice. Whether such an opportunity should be provided must depend upon a careful analysis of the whole of the circumstances in which the question arose for consideration.

A careful analysis of the circumstances of this case involves consideration of the type of application before the Tribunal, the nature of the information in issue and how the Tribunal used the information. The starting point must be that the Tribunal was not carrying out merits review (as it most frequently does in relation to planning applications), but was asked to exercise its powers under s 149B of the Act, which invests the Tribunal with similar power to that possessed by the Supreme Court to judicially review matters arising under the Act.[48] Moreover, the allegations made by Mrs Magee were of a kind that raised fundamental questions about the conduct of the Council and depended on exposure of that conduct. The practices of the Tribunal for the conduct of merits review of planning decisions, and especially the practice of taking extensive evidence in the form of submissions from the responsible authority, are not well adapted to the determination of the application that was made.
[48]Re Sweetvale and Denton Corker Marshall (2004) 20 VAR 420, [17].

However, in my view, the factual assertions contained in the Council’s submissions and relied on by the Tribunal in its reasons were innocuous and were of little or no consequence in the Tribunal’s decision:

(a) At paragraphs 11 and 12 of its reasons, the Tribunal recited some of the factual matters that had appeared in the Council’s written submissions. However, this was limited to the dates of two meetings and who attended those meetings.

(b) At paragraph 13, the Tribunal recorded that it was told by Ms Marcus (the solicitor for the Council) that comments were made by the Urban Designer regarding key elements of the design and in particular, the type of roof, number of units and separate pedestrian access. The Tribunal also noted the assertion that the Urban Designer provided advice on and criticism of the plans presented at this meeting.

(c) At paragraph 17, the Tribunal recorded the submission that the permit application was allocated to a council planner who was not one of the persons who attended the pre‑application meetings. The Tribunal was advised by Ms Marcus that the planner in question was a team member of another of Council’s statutory planning teams, and was not supervised by officers who attended the pre‑application meetings.

(d) At paragraphs 24 and 25, the Tribunal recorded the submission that on 28 April 2009, representatives of the developer met with two councillors and presented a PowerPoint presentation entitled “Compact Community Development Through Responsible Development”, that a copy of this presentation was provided to all councillors and was presented at the meeting on 3 May. The Tribunal also recorded Ms Marcus’ submission that at the time the presentation was made, the officer’s planning report had been prepared, finalised and circulated and was available for public viewing on the Council’s website.

In my view, in the absence of the information referred to in (a), (b) or (c), the same or a very similar narrative as to what occurred at and resulted from the pre-application meetings could have been reconstructed from the email communications and the development plans which, Mrs Magee says, were properly in evidence. On the basis of that narrative, the Tribunal was correct to conclude that the pre-application meetings did not give rise to a reasonable apprehension of bias.

As to the factual assertion that the Council planner who prepared the officer’s planning report was not supervised by Mr Harper or Ms Georges, so much should be a matter of public record. The report, in any event, speaks for itself. For the reasons that I have given, it is not ‘tainted’. The Tribunal was correct to conclude that the recommendation in the officer’s planning report did not give rise to an apprehension of bias.

Moreover, the information that was taken from the submissions was scarcely information that was ‘against’ Mrs Magee that required her to be given an opportunity to challenge. It was quite different from the expert evidence that was in issue in Daynes and Selpam.

It is true that Mrs Magee could have explored through cross‑examination whether there were any further meetings or communications, whether any other people, such as councillors, were present at those meetings and whether the matters discussed at those meetings went beyond the planning matters identified. Cross-examination might, theoretically, have revealed evidence that was different from and/or inconsistent with the factual assertions contained in the Council’s submissions. However, the argument that cross-examination might have revealed unknown facts showing actual bias or supporting a finding of apprehended bias would have more force if there was any reason to think that such facts existed. The only thing that Mrs Magee is able to point to which raises some doubt about the facts asserted by the Council is a reference in one of the emails to a further pre-application meeting that apparently occurred on Friday, 18 September 2009. The Council submission makes no reference to this meeting and nothing is otherwise known about it. That alone is not sufficient, in my view, to establish that Mrs Magee was denied procedural fairness by not being given the opportunity to engage in cross-examination of Council officers. For the reasons I have given, whether or not there was a reasonable apprehension of bias is unlikely to turn on the discovery of one (or even two or three) additional pre-application meetings or communications.

In my view, given the very limited nature of the information derived from Council submissions referred to in the Tribunal’s reasons, Mrs Magee was afforded an adequate opportunity to challenge or contradict material advanced against her.

Whether the Tribunal’s refusal to order production of Council’s ‘correspondence’ file during the course of the hearing constituted a breach of natural justice also depends on the circumstances in which the call for production was made and what the call might have revealed. Those circumstances of the call appear from the transcript at the Tribunal to have been as follows:

(a) There was a directions hearing approximately one month before the hearing of the application, at which Senior Counsel for Mrs Magee asked to be provided with certain documents by the Council and/or by the developer. He asked in particular for plans of the development, including the original set of plans that were provided, and the sets of plans that were requested to be amended and which went to the settled plan that became the subject of the application. The Council undertook to provide such plans as it had. Those plans were apparently provided to Mrs Magee.

(b) The transcript of the substantive hearing before the Tribunal shows that counsel for Mrs Magee put into evidence by consent what he described as “basically the planning file of the Council.”[49] Mrs Magee appears to have previously made a further request for documents to the Council, which resulted in the production of the email correspondence referred to.
[49]Transcript of Proceedings, Magee v Boroondara City Council (VCAT, P1672/2010, Jeanette G. Rickards (Acting Deputy President), 12 October 2009) 1.18 – 1.22.

(c) During the course of the hearing, counsel for Mrs Magee noticed that a set of plans provided by the developer contained the annotation “Amendments in response to Council correspondence dated 14 December 2009”. He told the Tribunal that Mrs Magee had not been given a copy of the 14 December letter and called for the Council’s correspondence file to be produced. The Tribunal member informed him that the 14 December letter was on the Tribunal’s file and that it was a request for further information from Council that had been made after the application had been lodged. In fact, the letter in question was a formal request for information from the Council to the developer pursuant to s 54 of the Planning Act.[50] The Tribunal member explained that documents of that kind were produced to the Tribunal by responsible authorities for the purposes of planning applications. The Tribunal immediately made its file available to the Mrs Magee, on the basis that it was open to the parties to inspect the Tribunal’s file at any time.
[50]See above n 3.

(d) Having inspected the contents of the Tribunal’s file, counsel for Mrs Magee observed that it did not seem to contain the whole of the Council file. The Tribunal member said she would not expect it to, because the Tribunal was usually provided with the “very basic sort of requirements that occur under the Act of the application, objections, objectors names, the report.”[51] That would include a request for further information. Counsel for Mrs Magee then said:
[51]Ibid 17.29 – 18.1.

No. The difficulty that we have is that given there was a request that relevant documents be provided and all that was provided was that bundle that’s sitting on the table there, we’re really in the dark about some of the negotiations that went on, and so I’d call for the council to produce the file and give us an opportunity to inspect it.[52]

(e) Counsel for Mrs Magee emphasised that Council’s dealings with the developer were central to its application, and that it was a question of degree as to whether those dealings gave rise to an apprehension of bias. He submitted that it was clear that not all relevant documents had been produced by Council, because the letter of 14 December 2009 had not been among the documents produced.

[52]Ibid 18.5 – 18.11.

The call to produce the Council file was therefore made on the basis that an earlier request to Council’s solicitors to provide to Mrs Magee communications between Council and the developer had not been properly complied with, because one document constituting a formal communication between the Council and the developer was not produced.

Mrs Magee submits that the Council’s file might have contained valuable information supporting her case. However, she can point to only one document that was not provided to her. That document was a statutory request made as part of the formal application and assessment process. The Court is not familiar with the terms of the request for documents apparently made by Mrs Magee to the Council and/or the developer prior to the Tribunal hearing. Whatever its form, it appears to have elicited precisely the kinds of documents that Mrs Magee believed that she needed in order to show that there were a number of informal or unofficial communications between Council officers and the developer. The fact that the statutory request for information was not included in those documents does not, in my view, give rise to concerns that Mrs Magee was left “in the dark” about “some of the negotiations that went on”. Because the Council took the view that there was nothing untoward or unusual in the pre-application communications and meetings, it referred to them openly in it the officer’s planning report and in its submissions to the Tribunal.

The Tribunal attempted by means of a directions hearing to ensure that questions of discovery were dealt with prior to the hearing. It was confronted with a call for documents to be produced mid-way through its hearing, in circumstances where it was unlikely that further documents would shed light on the questions in issue and where the call might well have resulted in a delay to the further hearing of the application. In my view, there was no error in the Tribunal exercising its discretion not to make the order sought and Mrs Magee was not denied procedural fairness by this decision.

In the circumstances, I reject the submission that the Tribunal’s decision was made in consequence upon a hearing conducted in contravention of ss 97, 98(1) and 102 of the VCAT Act.

Ground 1 is not made out.

Ground 2

Mrs Magee contends that the Tribunal erred in making findings based on matters that were not in evidence. Ground 2 overlaps with Ground 1, in that it is submitted that the Tribunal erred in making findings based on assertions in the Council’s submissions that were not admissible evidence.

Mrs Magee’s written submissions set out seven findings of fact which she says are objectionable:

(a)There were two pre‑application meetings between the Council and the developer.
(b)At a meeting on 11 September 2009 between the developer and four Council officers, the Urban Designer made comments regarding key elements of the design and in particular, the type of roof, the number of units and separate pedestrian access. The Urban Designer provided advice and criticism on the plans presented. The advice given was based on a professional relationship in which the adviser was expected to exercise some professional judgement.
(c)The developer’s application was allocated to a planner who was not one of the persons who attended the pre‑application meetings, and was part of a different statutory planning team within the Council.
(d)Once the formal application process was commenced, and objections had been lodged, further discussion only occurred at the Council meetings. There were no ex parte communications between the developer and the Council. There was nothing contained in the communications between the developer and the Council officer which could be said to have been taken into account by the Council in making its decision without affording Mrs Magee an opportunity to comment.
(e)The communications between the Urban Designer and the developer related to no more than “the things to look for in the planning scheme that may affect your application; the operation of the residential development provisions; and information that needs to be provided with the application under the residential development provisions”. The Council planner (who did not take part in any pre‑application meetings) was assigned the application and undertook the assessment following which she provided her recommendations based on her assessment.
(f)The recommendation of the planner is not of “such significance” in the Council reaching its own decision. The Council planner’s report was not the sole matter considered by the Council in determining the application.

The factual findings in (b) and (c) are said to be not open simply because they were based on assertions made by the Council in submissions, and there was no admissible evidence on those points.

The findings of fact in (a) and (d) are said to be contrary to the evidence that was before the Tribunal because –

· there were three pre‑application meetings rather than two; and

· after the formal application process commenced, there were communications between the developer and the Council: two councillors met with the developer shortly before the Council meeting on 3 May 2010 to be given a PowerPoint presentation.

The finding in (e) is said to contradict tendered documents in that the characterisation of the relevant communication as “things to look for in the planning scheme that may affect your application et cetera” is not a proper characterisation of the changes suggested by the Council’s Urban Designer.

Finally, the finding in (f) is said not to be open because the Council’s reasons for decision provided under s 8 of the Administrative Law Act 1978 (Vic) only made reference to the officer’s planning report.

For the reasons I have given, I do not consider that the decision of the Tribunal not to make a declaration that the Council’s decision to approve the development was affected by apprehended bias is vitiated because the Tribunal referred to only two pre‑application meetings when there may have been three, or because it accepted evidence in the form of submission concerning the course of the pre-application meetings and as to the status (or position in the chain of command) of the Council planner who prepared the officer’s planning report.

Nor do I consider that the characterisation of the communication referred to in paragraph (e) contradicted the tendered documents. The fact that the Council’s Urban Designer suggested a change from a flat roof to a skillion roof relates to “something in the planning scheme that might affect the application” and concerns the operation of the residential development policies administered by the Council. There is nothing unusual or untoward about a Council officer suggesting a different roof line in order for the development to better reflect neighbourhood character. In my view, this is precisely the kind of interaction that the Practice Note aimed to foster. The same can be said of the other suggestions made by the Urban Designer.

Of more concern is the factual finding referred to in (d). Council provided information in its submissions that there was also a meeting between the developer and two councillors prior to the Council meeting. The finding that after the formal application process commenced, there were no communications between the developer and the Council was clearly not open to the Tribunal – indeed, it was contrary to what it had stated in its findings in paragraph 24. Whether that mistake is sufficient to vitiate the Tribunal’s decision depends on whether the mistake was material to the Tribunal’s decision that the Council’s conduct did not give rise to apprehended bias. I am satisfied, for the reasons previously given, that it was not. Had the Tribunal taken into account the meeting between the two councillors and the developer, it could have reached the same conclusion.

Finally, the finding that the recommendation of the planner was not the sole matter considered by the Council in determining the permit application was plainly open on the evidence, notwithstanding Council’s thoughtless response to Mrs Magee’s request for reasons under the Administrative Law Act (which apparently resulted in no more than the provision of the officer’s planning report). Minutes of the Council meeting on 3 May 2010 were in evidence and they showed that objectors were given a proper opportunity to make submissions and to address matters in the officer’s planning report, and that a alternative motions were considered and voted on before Council resolved to grant the Notice of Decision to Grant a Permit.

The Tribunal made some errors of fact. However, those errors were not so significant as to vitiate its decision. For the reasons I have previously given, I am satisfied that a fair-minded lay observer would not apprehend bias by the Council by reason of the pre-application meetings and communications between the developer and Council officers and the post-application meeting between the developer and two of the councillors who would vote on the development proposal.

Ground 5

Mrs Magee contends that the Tribunal failed to take into account a relevant consideration and improperly fettered the exercise of its discretion under s 149B of the Planning Act by limiting itself to considering whether she had an alternative remedy and not considering others factors that might militate against the grant of relief. The availability of an alternative remedy was not weighed against the factors identified by the Court of Appeal in Garde-Wilson v Legal Services Board.[53]
[53][2008] VSCA 43 (‘Garde-Wilson’).

The Tribunal declined to make the declarations sought on the ground that that it was unable to conclude that the Council’s decision was affected by an apprehension of bias, but it said that if that was an incorrect conclusion, then it did not consider that it should exercise its discretion to make the declarations “in the circumstances of this matter as there is a process of review available to the applicant which is a ‘de novo’ hearing by the Tribunal and the applicant has already commenced such a process”.[54]
[54]Magee v Boroondara City Council [2010] VCAT 1323, [62].

Before reaching this conclusion, the Tribunal referred to Mrs Magee’s reliance on Garde-Wilson and, in particular, to the following matters:

… that the onus of establishing that the discretion should be exercised to refuse relief falls on the party opposing the grant of relief; the existence of an adequate alternative remedy is a factor in the exercise of the discretion but is not determinative; and denial of declaratory relief to a party denied a fair decision below denies that party the availability of at least one level of appellate review and the Court should be slow to allow a serious denial of procedural fairness to be allowed [sic] to stand.[55]

[55]Ibid [51].

The Tribunal therefore correctly referred to the factors identified in Garde-Wilson. However, having referred to them, it gave these factors no real consideration. As a result, the Tribunal’s discretion would not have been exercised by reference to the considerations identified by the Court of Appeal. I am satisfied that its discretion would have miscarried.

Ground 5 is made out. However, as there was no error in the Tribunal being unable to conclude that a fair-minded lay observer might reasonably apprehend that the Council did not bring an impartial mind to the determination of the development application, the Tribunal’s approach the question of discretion is not a vitiating error.

Conclusion

The Tribunal’s decision is not attended by sufficient doubt to warrant the grant of leave. Having regard to all of the circumstances and to the justice of the case, I do not consider that leave to appeal should be granted.

Leave to appeal is refused and Mrs Magee’s application is dismissed.

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Magee v Boroondara City Council [2011] VSC 78

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11 March 2011