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

1. 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. 

1. 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. 

1. 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. 

1. The…