MINISTER FOR PLANNING vs SURF COAST SHIRE COUNCIL
[2023] VSC 755
•15 December 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION AND PLANNING LIST
S ECI 2022 02049
| ZEALLY INVESTMENTS PTY LTD, DUFFIELDS ROAD PTY LTD and YALLARA NOMINEES PTY LTD | Plaintiffs |
| v | |
| MINISTER FOR PLANNING | First Defendant |
| And | |
| SURF COAST SHIRE COUNCIL | Second Defendant |
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JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8–9 August 2023 |
DATE OF JUDGMENT: | 15 December 2023 |
CASE MAY BE CITED AS: | Zeally Investments Pty Ltd v Minister for Planning |
MEDIUM NEUTRAL CITATION: | [2023] VSC 755 |
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ADMINISTRATIVE LAW — Judicial review — Strategic planning — Distinctive areas and landscapes — Minister’s decision to finalise statement of planning policy for endorsement — Whether Minister complied with consultation obligation — Whether decision by Minister to finalise statement of planning policy unreasonable — Whether Minister misunderstood the law to apply when making finalisation decision — Whether finalisation decision affected by bias — Council’s decision to endorse statement of planning policy — Whether decision by Council to endorse statement of planning policy unreasonable — Whether Council misunderstood the law to apply when making endorsement decision — Both decisions free from error — Planning and Environment Act 1987 (Vic), s 4, Pt 3AAB, ss 46AN, 46AO, 46AT, 46AW, 46AX.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Ms SM Brennan SC with Ms T Meyrick | Best Hooper Lawyers |
| For the First Defendant | Mr CJ Horan KC with Ms J Wang | Victorian Government Solicitor |
| For the Second Defendant | Mr MP Costello KC with Ms A Crittenden | Corrs Chambers Westgarth |
TABLE OF CONTENTS
Introduction
Spring Creek area
Planning Act – relevant provisions
Surf Coast declared area
Preparation of Surf Coast SPP
Finalisation Decision
Ground 1 – Did the Minister consult as required by s 46AW?
Plaintiffs’ submissions
Minister’s submissions
Consideration
Ground 2 – Was the Finalisation Decision legally unreasonable?
Plaintiffs’ submissions
Minister’s submissions
Consideration
Ground 3 – Did the Minister misunderstand the law?
Plaintiffs’ submissions
Minister’s submissions
Consideration
Ground 5 – Was the Finalisation Decision affected by bias?
The media statements
Plaintiffs’ submissions
Minister’s submissions
Consideration
Endorsement Decision
Ground 6 – Was the Endorsement Decision legally unreasonable?
Plaintiffs’ submissions
Council’s submissions
Minister’s submissions
Consideration
Ground 7 – Did the Council misunderstand the law?
Plaintiffs’ submissions
Council’s submissions
Minister’s submissions
Consideration
Disposition
HER HONOUR:
Introduction
Spring Creek is an area of land to the west of Duffields Road in Torquay, Victoria, which lies within the Surf Coast Shire and is part of the broader Surf Coast region. The plaintiffs in this proceeding own or have an interest in about half the land in the Spring Creek area, specifically an area of 87 hectares at 80 Duffields Road, Torquay and an area of 38 hectares at 140 Duffields Road, Torquay.
The future use and development of the Spring Creek area has been a matter of contention in the Surf Coast region for many years. The plaintiffs wish to subdivide their land for residential development, but this has met with opposition from many sources. The most recent development in the tortuous planning history of the area was the approval by the Governor in Council of the Surf Coast Statement of Planning Policy (Surf Coast SPP) under Pt 3AAB of the Planning and Environment Act 1987 (Vic) (Planning Act) on 25 October 2022.
The Surf Coast SPP is intended to create a framework to guide future use and development of land within the declared Surf Coast distinctive area and landscape (Surf Coast declared area). Among other things, the Surf Coast SPP applies a protected settlement boundary around Torquay-Jan Juc that excludes the Spring Creek area from the settlement. Implementation of the Surf Coast SPP through an amendment to the Surf Coast Planning Scheme will rezone the Spring Creek area from Urban Growth Zone to a rural zone, precluding residential development of the plaintiffs’ land for the foreseeable future.
In this proceeding, the plaintiffs challenge the validity of the Surf Coast SPP by impugning two decisions made along the way to its ultimate approval by the Governor in Council.
The first of these decisions is the Minister for Planning’s approval on 3 April 2022 of a final draft of the Surf Coast SPP for endorsement by responsible public entities and relevant Ministers under s 46AX(1) of the Planning Act (Finalisation Decision). The Minister gave written reasons for his Finalisation Decision (Reasons), in particular his determination that the Spring Creek area should be outside the Torquay-Jan Juc settlement boundary. The plaintiffs contend that the Finalisation Decision was invalid because:
(a) the Minister did not consult when preparing the Surf Coast SPP as required by s 46AW of the Planning Act;
(b) the Minister acted irrationally or unreasonably in making the Finalisation Decision, specifically in concluding that his preferred settlement boundary would not compromise land supply;
(c) the Minister’s consideration of land supply constraints was not in accordance with the Planning Act; and
(d) the Finalisation Decision was affected by bias in the form of prejudgment.
The second decision is the decision of the Surf Coast Shire Council made on 23 August 2022 to endorse the Surf Coast SPP under s 46AX(1) of the Planning Act (Endorsement Decision). The plaintiffs say that the Council’s Endorsement Decision was invalid because:
(a) it was unreasonable, in that it lacked an evident and intelligible justification; and
(b) the Council misunderstood the law that it was to apply in making the Endorsement Decision, and so constructively failed to exercise its jurisdiction.
The plaintiffs say that the Finalisation Decision and the Endorsement Decision were both necessary preconditions to the approval of the Surf Coast SPP. Their case is that the invalidity of these two decisions means that the approval of the Surf Coast SPP is also invalid, and that it has no legal effect.
The plaintiffs seek orders in the nature of certiorari quashing the Finalisation Decision, the Endorsement Decision, and the Minister’s decision to recommend approval of the Surf Coast SPP to the Governor in Council. They also seek declarations to the effect that these decisions and the Surf Coast SPP are void and of no effect.
The Minister contends that both the Finalisation Decision and the Endorsement Decision were free from error, and the Council defends the validity of the Endorsement Decision.
For the reasons that follow, none of the plaintiffs’ grounds are made out, and the proceeding must be dismissed.
Spring Creek area
The Spring Creek area comprises approximately 245 hectares of land extending about one kilometre west of Duffields Road. Its northern boundary is Grossmans Road, Duffields Road provides its eastern boundary, and the Great Ocean Road runs along its southern edge. The land to its west is rural, and there is no tangible western boundary. The features of the Spring Creek area are depicted in Figure 1 below.
Figure 1: Precinct Features, in Surf Coast Shire, Spring Creek Precinct Structure Plan (April 2016), 6, exhibited to the affidavit of Eliza Jane Minney dated 2 June 2022.
The area is located west of Torquay in the Surf Coast region to the south of Geelong. Figure 2 below shows the location of the Spring Creek area in its regional context.
Figure 2: Regional Context, in Surf Coast Shire, Spring Creek Precinct Structure Plan (April 2016), 4, exhibited to the affidavit of Eliza Jane Minney dated 2 June 2022.
As at January 2013, the Spring Creek area was in the Farming Zone but was designated for future urban growth in the Torquay-Jan Juc framework plan in the Surf Coast Planning Scheme. The Council exhibited Amendment C66 to the Surf Coast Planning Scheme, which proposed to remove that designation and place the Torquay-Jan Juc settlement boundary at Duffields Road. This proposal was the subject of a panel hearing in mid-2013. The panel recommended that the Spring Creek area remain designated for future urban growth and be rezoned accordingly. Although the Council disagreed with this recommendation, the Minister accepted it and took steps to implement it.
On 11 March 2014, the Minister adopted and approved Amendment C95 to the Surf Coast Planning Scheme. This amendment rezoned almost all of the Spring Creek area from Farming Zone to Urban Growth Zone.[1] The Urban Growth Zone exists to manage the transition of non-urban land to urban land in accordance with a precinct structure plan. Land in the Urban Growth Zone cannot be subdivided and developed for urban use until a precinct structure plan has been developed and incorporated in the relevant planning scheme.
[1]An area of 15.6 hectares occupied by a school was rezoned from Farming Zone to Special Use Zone.
After the approval of Amendment C95, the Council developed a Spring Creek Precinct Structure Plan (Spring Creek PSP), which is the source of the maps in Figures 1 and 2. On 24 October 2017, the Council adopted Amendment C114 to the Surf Coast Planning Scheme. If Amendment C114 had been approved by the Minister, it would have incorporated the Spring Creek PSP in the Surf Coast Planning Scheme, and would have allowed for the subdivision, development and use of the plaintiffs’ land for residential purposes.
However, the Minister did not approve Amendment C114. On 1 October 2018, the Minister returned the amendment to the Department of Environment, Land, Water and Planning[2] for review in relation to the provision of a primary school site, the protection of some native vegetation, and dwelling density and road layouts. This review was overtaken by the Minister’s announcement on 30 October 2018 that he intended to declare the Surf Coast area a distinctive area and landscape under Pt 3AAB of the Planning Act.
[2]Now called the Department of Energy, Environment and Climate Action or DEECA.
Planning Act – relevant provisions
The purpose of the Planning Act is ‘to establish a framework for planning the use, development and protection of land in Victoria in the present and long-term interests of all Victorians’.[3] This purpose is supported by s 4(1), which sets out the objectives of planning in Victoria, and s 4(2) which sets out the objectives of the planning framework established by the Act.
[3]Planning and Environment Act 1987 (Vic) (Planning Act), s 1.
Part 3AAB — Distinctive areas and landscapes was added to the Planning Act by the Planning and Environment Amendment (Distinctive Areas and Landscapes) Act 2018 (Vic), which took effect from 30 May 2018.
In his second reading speech for the Planning and Environment Amendment (Distinctive Areas and Landscapes) Bill 2017, the Minister for Planning said that the Bill was a landmark in the management of the peri-urban areas around metropolitan Melbourne and Victoria’s regional cities. The Minister said further that the amendments would provide for the protection of state significant valued assets located in these regions, and would ensure greater certainty about the long-term sustainability of areas that contain distinctive values. The Bill was said to strengthen existing planning controls and ensure that the significance of distinctive areas is elevated in state planning policy.[4]
[4]Victoria, Parliamentary Debates, Legislative Assembly, 14 December 2017, 4528 (Richard Wynne, Minister for Planning) (Second reading speech).
While the Bill was specifically directed to protecting the environmental values and character of the Macedon Ranges region, it was said to pave the way for other distinctive areas and landscapes across Victoria to have access to ‘the highest level of planning protection’.[5] The Minister explained that the amendments would introduce a mechanism similar to the urban growth boundary,[6] which provided a strategic limit to Melbourne’s outward expansion. The equivalent mechanism provided in the Bill allowed for protected settlement boundaries around townships in order to ensure that peri-urban growth does not compromise distinctive areas and landscapes.[7]
[5]Second reading speech, 4528.
[6]The urban growth boundary was introduced in 2002 by the Victorian Government in a strategic planning document titled Melbourne 2030: Planning for sustainable growth.
[7]Second reading speech, 4528.
The objects of Pt 3AAB are:[8]
(a)to recognise the importance of distinctive areas and landscapes to the people of Victoria and to protect and conserve the unique features and special characteristics of those areas and landscapes; and
(b)to enhance the conservation of the environment in declared areas including the unique habitats, ecosystems and biodiversity of declared areas; and
(c)to enable the integration of policy development, implementation and decision-making for declared areas under Statements of Planning Policy; and
(d)to recognise the connection and stewardship of traditional owners in relation to land in declared areas.
[8]Planning Act, s 46AN.
A ‘declared area’ is an area to which an order under s 46AO applies.[9] On the recommendation of the Minister for Planning, the Governor in Council may declare under s 46AO that an area is a distinctive area and landscape, by order published in the Government Gazette.[10]
[9]Planning Act, s 3 (definition of ‘declared area’).
[10]Planning Act, s 46AO(1).
Section 46AP sets out the requisite features of an area that the Minister may recommend be declared as a distinctive area or landscape:
Requirements for area to be declared as a distinctive area and landscape
(1)The Minister must be satisfied that an area has a majority of the following attributes in order to recommend that the area be declared as a distinctive area and landscape—
(a)outstanding environmental significance;
(b)significant geographical features, including natural landforms;
(c)heritage and cultural significance;
(d)natural resources or productive land of significance;
(e)strategic infrastructure or built form of significance;
(f)an attribute prescribed for the purposes of this section.
(2)The Minister must be satisfied that an area is under threat of significant or irreversible land use change that would affect the environmental, social or economic value of the area in order to recommend that the area be declared as a distinctive area and landscape, whether that threat arises from—
(a)land use conflicts; or
(b)multiple land use changes over time; or
(c)any other land use threat prescribed for the purposes of this section.
Section 46AT requires the Minister to prepare a statement of planning policy for a declared area, which is to be endorsed within a prescribed timeframe:
Minister to develop Statement of Planning Policy for declared area
(1)The Minister must prepare a Statement of Planning Policy for a declared area.
(2)The declaration of the declared area lapses if the Statement of Planning Policy is not endorsed in accordance with section 46AX and approved in accordance with section 46AY within—
(a)one year after the declaration of the area under section 46AO takes effect; or
(b)a period approved by the Governor in Council under subsection (3).
(3)Before the end of the period specified in subsection (2)(a), the Governor in Council, by order published in the Government Gazette, may approve a period not exceeding 2 years after the declaration of the area under section 46AO takes effect for the preparation, endorsement and approval of the Statement of Planning Policy for the declared area
A statement of planning policy is intended ‘to create a framework for the future use and development of land in the declared area to ensure the protection and conservation of the distinctive attributes of the declared area’.[11]
[11]Planning Act, s 46AU.
Section 46AV prescribes the content of a statement of planning policy, which must include the following:
Contents of Statement of Planning Policy
(1)The Statement of Planning Policy for a declared area must—
(a)set a vision for a period of at least 50 years that identifies the values, priorities and preferences of the Victorian community in relation to the distinctive attributes of the declared area, including preferences for future land use, protection and development; and
(b)set out the long-term needs for the integration of decision-making and planning for the declared area; and
(c)state the parts of the Statement that are binding on responsible public entities and the parts that are in the nature of recommendations to which responsible public entities are only required to have regard; and
(d)include a declared area framework plan in accordance with subsection (2); and
(e)set out Aboriginal tangible and intangible cultural values, and other cultural and heritage values, in relation to the declared area.
(2)The declared area framework plan must provide a framework for decision-making in relation to the future use and development of land in the declared area that—
(a)integrates environmental, social, cultural and economic factors for the benefit of the community and encourages sustainable development and identifies areas for protection and conservation of the distinctive attributes of the declared area; and
(b)may specify settlement boundaries in the declared area or designate specific settlement boundaries in the declared area as protected settlement boundaries.
When preparing a statement of planning policy for a declared area, the Minister has certain consultation obligations provided under s 46AW:
Consultation
The Minister must consult the following when preparing a Statement of Planning Policy for a declared area—
(a)each responsible public entity for the area;
(b)the local community;
(c)any other person or entity that the Minister considers may be affected by the Statement of Planning Policy.
The Planning Act adopts the definition of a ‘public entity’ set out in s 5 of the Public Administration Act 2004 (Vic).[12] In Pt 3AAB, a ‘responsible public entity’ means, in relation to a declared area:[13]
[12]Planning Act, s 3(1) (definition of ‘public entity’).
[13]Planning Act, s 3(1) (definition of ‘responsible public entity’).
(i)the Secretary (within the meaning of the Conservation, Forests and Lands Act 1987);
(ii)the water corporation responsible for the area in which the declared area is located;
(iii)a municipal council whose municipal district contains land in the declared area;
(iv)Parks Victoria established under Part 2 of the Parks Victoria Act 1998;
(v)the Victorian Planning Authority established under Part 2 of the Victorian Planning Authority Act 2017;
(vi)a Catchment Management Authority under the Catchment and Land Protection Act 1994 for a catchment and land protection region that contains land in the declared area;
(vii)the Head, Transport for Victoria within the meaning of the Transport Integration Act 2010;
(viii)Victorian Rail Track continued under section 116 of the Transport Integration Act 2010;
(ix)any committee of management or trustees under the Crown Land (Reserves) Act 1978 in relation to land in the declared area;
(x)any Traditional Owner Land Management Board established under Part 8A of the Conservation, Forests and Lands Act 1987 in relation to land in the declared area;
(xi)any other public entity prescribed to be a responsible public entity in relation to the declared area;
Section 46AX provides for the endorsement of a statement of planning policy by relevant responsible public entities. At the relevant times, s 46AX was in the following terms:[14]
[14]Section 46AX has since been amended by the Building and Planning Legislation Amendment Act 2023 (Vic), with effect from 1 March 2023.
Endorsement of Statement of Planning Policy
(1)The Minister must give a copy of the draft Statement of Planning Policy to each responsible public entity specified in the Statement for endorsement by the entity and the Minister responsible for that entity.
(2)The Minister responsible for a responsible public entity may give a written direction to the entity in relation to the endorsement of the draft Statement of Planning Policy.
Once a statement of planning policy has been endorsed in accordance with s 46AX, it may be approved by the Governor in Council under s 46AY(1), and the Minister must then publish notice of the approval in the Government Gazette.[15] The statement of planning policy takes effect on the day the notice of approval is published, or on a later day specified in the notice.[16]
[15]Planning Act, s 46AY(2).
[16]Planning Act, s 46AZ(1).
From the time a statement of planning policy takes effect, it is taken to form part of the State standard provisions of the Victorian Planning Provisions.[17] In addition, the Minister must prepare a planning scheme amendment to give effect to the statement of planning policy.[18] Section 46AZC prohibits any amendment to a declared area planning scheme that is inconsistent with the statement of planning policy for the declared area.
[17]Planning Act, s 46AZ(2).
[18]Planning Act, s 46AZB.
Part 3AAB allows for the application of protected settlement boundaries to a declared area, which delineates the boundary for urban development in areas protected under a statement of planning policy. A protected settlement boundary is applied through a planning scheme amendment, but unlike other planning scheme amendments a protected settlement boundary does not take effect unless it is ratified by Parliament.[19]
[19]Planning Act, s 46AZD. The procedure for the ratification of a protected settlement boundary amendment to a planning scheme is provided in ss 46AZE, 46AZF, and 46AZG.
Division 5 of Pt 3AAB sets out the duties of responsible public entities in relation to a declared area. The first of these duties is provided by s 46AZK:
Responsible public entities not to act inconsistently with Statement of Planning Policy
A responsible public entity must not act inconsistently with any provision of the Statement of Planning Policy that is expressed to be binding on the public entity when performing a function or duty or exercising a power in relation to the declared area.
A responsible public entity should also abide by the principles set out in s 46AZL:
Principles
If a responsible public entity develops or implements policies or programs or makes decisions in relation to a declared area, the responsible public entity should—
(a)consult with all levels of government and government agencies that are relevant to the decision; and
(b)use best practice measures to protect and conserve the unique features and special characteristics of the declared area; and
(c)undertake continuous improvement to enhance the conservation of the environment in declared areas; and
(d)have regard to the principles prescribed to apply—
(i)to all declared areas; and
(ii)in relation to a particular declared area.
Once a statement of planning policy has been approved, it may be amended as provided in s 46AZA. The Minister must review the statement of planning policy within 10 years.[20]
[20]Planning Act, s 46AZI.
Surf Coast declared area
On 19 September 2019, the Governor in Council declared the Surf Coast to be a distinctive area and landscape under s 46AO(1) of the Planning Act (declaration).[21] As provided by s 46AO(2)(d)(i), the preamble to the declaration set out the significance of the area to the people of Victoria:[22]
(a)The Surf Coast has natural landscapes of outstanding beauty and environmental, economic and cultural heritage values of state and national significance.
(b)Its diverse natural environment and impressive landforms, combined with visible layers of history, underscore its special significance to the people of Victoria and its important role in our social, cultural and economic development.
(c)There are a number of nationally and state significant areas of biodiversity including the Point Addis Marine National Park, Point Danger Marine Sanctuary, Point Impossible, The Breamlea/Karaaf wetlands and associated estuaries. These areas provide important habitats to a variety of flora and fauna including endangered and threatened species like the Hooded Plover, Bellarine Yellow Gum and the critically endangered Orange-Bellied Parrot.
(d)The Great Ocean Road, which begins in Torquay, is registered on the National Heritage list. The Road is a highly important destination for local and overseas visitors. The history and construction of the road was important for the development of the state and opening the region to tourism.
(e)There are many high-quality surfing beaches within the area, including Bells Beach, which hosts international surfing events. The Surf Coast is synonymous with surfing, is an important aspect of the development of the area as a holiday destination and forms part of the cultural identity of the Surf Coast.
[21]‘Declaration of the Surf Coast as a distinctive area and landscape’ in Victoria, Victoria Government Gazette, No G38, 19 September 2019, 1980–3.
[22]Declaration, 1980.
The declaration also contained a statement of the significance of the Wadawurrung Country and the area to its traditional owners, in both traditional language and English. The English version of the statement read:[23]
[23]Declaration, 1980–1, as provided by s 46AO(2)(d)(ii) of the Planning Act.
We deeply respect our people of the past. Elders, children, men, women. We deeply respect their knowledge of country, water, life, their care of the traditions and of each other, we stand with their spirit.
Great spirit Bundjil told us to take care of the great life within the land. To only take what you need without selfishness.
Wadawurrung shared their knowledge of singing, dance, trade, camps, fishing, hunting, paintings, and homes to us to protect for our future generations.
We all need to help.
Our Wadawurrung family group lived within Barwon River and Bass Strait, with a large land of forested areas and wonderful banks of the ocean, near many water bodies.
Life in the Modewarre gave Musk duck and Bream. Life in the Anglesea gave mullet Wurdiboluk, Gherang, Barwon River all provide ideal life to birds and fish, eels. Reeds turned into our baskets.
Life in the forest gave resources like food and lots of tools to use for trade, building, journey.
If there was lots to trade, we would share with our families and celebrate.
We would name our country, by what we could see.
Our country is remembered by Wadawurrung, our proud spirit walks to tomorrow to teach others the care of our earth.
Table 1 of the declaration summarised the attributes qualifying the declared area as a distinctive area and landscape, in accordance with s 46AO(2)(b) of the Planning Act. The declaration also identified the threats of significant or irreversible land use change that would affect the environmental, social or economic values of the declared area:[24]
(a)Threats to areas of significant biodiversity from land clearing and loss of habitat, urban development pressures including water run-off, human interference increased through tourism and introduced weeds and pests, climate change impacts and natural hazards such as change in water temperatures, sea level rise, storm surges and bushfire;
(b)Threats to natural landscapes and landforms from urban development expansion, increased visitation pressures, climate change impacts including sea level rise and change in storm patterns expected to increase risk of erosion;
(c)Threats to preservation of heritage and cultural attributes from township expansion, land use practices and increased tourism activity and recreation;
(d)Threats to natural resources and productive land from land use conflicts between conservation, agricultural use, residential use and recreation activities; cumulative impacts of development; and natural hazards, including bushfire and flooding;
(e)Threats to future effectiveness of strategic infrastructure due to increasing pressure from urban growth, tourism activity and cumulative urban development.
[24]Declaration, 1983, as required by ss 46AO(2)(c) and 46AP(2) of the Planning Act.
The Surf Coast declared area lies south of Geelong, and includes the coastline between Breamlea and Point Addis. The main settlement is Torquay-Jan Juc, with smaller settlements at Breamlea, Bellbrae, Mount Duneed, and Connewarre. A map of the declared area is at Figure 3 below.
Figure 3: Surf Coast declared area, from Surf Coast Statement of Planning Policy, 8, exhibited to the affidavit of Eliza Jane Minney dated 2 June 2022.
The location of the Surf Coast declared area relative to Melbourne, Geelong, and Ballarat is shown in Figure 4 below.
Figure 4: Surf Coast declared area, from Surf Coast Statement of Planning Policy, 8, exhibited to the affidavit of Eliza Jane Minney dated 2 June 2022.
On 10 September 2020, the Governor in Council extended the period for the preparation, endorsement and approval of the Surf Coast SPP to 19 September 2021.[25]
[25]‘Extension to the period of declaration of Surf Coast, Bellarine Peninsula and Bass Coast as distinctive areas and landscapes’, in Victoria, Victoria Government Gazette, No G36, 10 September 2020, 1723.
On 16 September 2021, the Governor in Council made a second declaration of the Surf Coast as a distinctive area and landscape.[26] The second declaration took effect on 20 September 2021.
[26]‘Declaration of Surf Coast as a distinctive area and landscape’, in Victoria, Victoria Government Gazette, No G37, 16 September 2021, 1985–8.
Preparation of Surf Coast SPP
Following the declaration of the Surf Coast declared area, on 28 June 2020 the Minister appointed a Standing Advisory Committee under s 151 of the Planning Act to provide advice on statements of planning policy for the Surf Coast and other declared areas. On 8 November 2020, the Minister referred a draft statement of planning policy for the Surf Coast declared area (draft SPP) to the Committee.
The draft SPP identified two options for the Spring Creek area. Option 1 involved a protected settlement boundary for Torquay-Jan Juc that included the Spring Creek area for low density, ecologically sustainable development. Option 2 placed the Spring Creek area outside the protected settlement boundary along Duffields Road in Jan Juc. The draft SPP did not include an option for conventional residential development in the Spring Creek area, as contemplated by Amendment C114.
On 25 June 2021, the Committee provided its report on the draft SPP to the Minister. The Committee did not recommend the adoption of either Option 1 or Option 2 in respect of the Spring Creek area. Rather, it recommended that the protected settlement boundary be moved from Duffields Road to the western edge of the Spring Creek area to enable the Spring Creek area to be available for conventional residential development, and that the Spring Creek PSP be reviewed and resolved within a six month timeframe. The Committee explained its reasons for that advice:[27]
The Committee recognises Torquay-Jan Juc and its surrounds is a special place that deserves recognition and, where appropriate, protection from inappropriate development. But Torquay-Jan Juc does not just belong to those residents who are fortunate enough to already live there. It should not be excluded from future urban development where it can be demonstrated that such development would provide opportunities for economic and housing growth without compromising the identified attributes of the declared area. Planning is charged with providing for economic and housing growth, and with providing more diverse residential opportunities. This includes consolidation of already developed areas and allowing for diverse and affordable housing in a range of locations and opening new areas where appropriate.
All Victorian councils (metropolitan and regional) have an obligation to provide for growth. Planning for growth must be undertaken in an orderly manner and must have regard to the interests of existing and future generations. In the Surf Coast Shire, Torquay-Jan Juc is clearly the main urban centre. It is recognised in policy as a ‘District Town’ and is a popular place to live, due to its outstanding environmental and landscape assets.
This does not mean that growth can occur in any location and be unrestrained. The draft SPP provides for protected settlement boundaries and one of the Committee’s roles is to provide advice to the Minister for Planning on where those boundaries should be.
The Committee considers it unfortunate that the long history of past planning processes and decisions for the Spring Creek area was revisited in the draft SPP. This process has opened old wounds and introduced new ones. The recent planning processes were extensive and, in the view of the Committee, both rigorous and comprehensive. The Committee is aware that some submitters disagree with the planning controls that emerged from those processes, but it is equally aware there are landowners and other submitters that not only support those controls, but have acted on the basis of a reasonable expectation that they would not be replaced with fundamentally different controls that restrict urban development opportunities.
[27]Distinctive Areas and Landscapes Standing Advisory Committee, Advisory Committee Report: Part 1 — Surf Coast Statement of Planning Policy, 25 June 2021, iii–iv.
Finalisation Decision
The Minister took some time to consider the Committee’s report and recommendations before making the Finalisation Decision on 3 April 2022. Contrary to the Committee’s advice, the final draft of the Surf Coast SPP approved by the Minister placed the Spring Creek area outside the protected settlement boundary along Duffields Road. In his written Reasons, the Minister explained why he had reached a different conclusion from the Committee in relation to the Spring Creek area.
After setting out the statutory context and factual background, the Minister turned to the Committee’s advice regarding the settlement boundary at Spring Creek, and its recommendation that the Spring Creek area be available for conventional residential development. He said that he had carefully considered the Committee’s advice and had given the matter independent thought. The Minister continued:
30.In the case of the location of the settlement boundaries of Spring Creek, I have respectfully disagreed with the advice provided by the Advisory Committee, and have concluded that the best course, taking all matters into account, is to exclude this area of landscape significance from the possibility of conventional residential subdivision by placing it outside the settlement boundaries for Torquay - Jan Juc.
31.In my opinion, the Advisory Committee gave too much weight to historical planning decisions and insufficient weight to the landscape, cultural and environmental character of the Spring Creek area west of Duffields Road. The planning history reveals considerable interest in development of the area west of Duffields road from landowners and speculators. This is borne out by the planning history and by the arguments advanced to the Committee. I am of the opinion that considerable weight should be given to the future pressure for development in this area, as well as to the consequences of development contemplated by historical planning decisions. Allowing conventional residential development west of Duffields Road would create an ephemeral settlement boundary along what would be a less substantial road than Duffields Road, which would inevitably come under pressure in an area of significant landscape value. In my opinion, Duffields Road presents as a tangible settlement boundary, and in light of the importance of the land to the west, should be used to delineate the township boundary. I consider this would represent a more orderly, long term planning outcome for this area.
The Minister then provided a detailed explanation for the conclusion he had reached. It is useful to set out that explanation in full.
32.Section 4 of the finalised Surf Coast SPP contains a declared area framework plan, as required by section 46AV of the PE Act.[28] A declared area framework plan may include settlement boundaries and may designate any or all of those settlement boundaries as a protected settlement boundary. A protected settlement boundary is afforded a greater level of protection under the PE Act, because once a protected settlement boundary is designated, any amendment to that boundary in a planning scheme must be ratified by Parliament in accordance with section 46AZE of the PE Act. I have relevantly determined to include a protected settlement boundary for Torquay-Jan Juc.
[28]References to the ‘PE Act’ are to the Planning Act.
33.A matter of substantial public interest in the preparation of the Surf Coast SPP has been the treatment of the land currently in the Urban Growth Zone Part A in the Spring Creek valley (Spring Creek). In finalising my preparation of the Surf Coast SPP, I have determined to exclude Spring Creek from the protected settlement boundary for Torquay – Jan Juc and set Duffields Road as the protected settlement boundary. This is shown in the declared area framework plan at map 3 and at map 10. Map 10 shows the area included in the ‘green break’ between Torquay - Jan Juc and Bellbrae.
34.A detailed history of the planning with respect to Spring Creek is set out in the Advisory Committee report. Of particular relevance to my reasons is the following:
a.the greenfield area was included in the Urban Growth Zone Part A in 2014;
b.a Precinct Structure Plan that would enable conventional residential development on the land was prepared by Surf Coast Shire with assistance from Victorian Planning Authority as part of Amendment C114surf to the Surf Coast Planning Scheme; and
c.following the declaration of Surf Coast as a distinctive area and landscape, I placed the determination of Amendment C114surf on hold pending the outcome of the SPP process.
35.The version of the draft SPP that I referred to the Advisory Committee, informed by Phase 2 consultation as outlined above, contained two options with respect to future land use in Spring Creek.
a.Option 1: low density ecological sustainable development with the current settlement boundary retained. This option identified the need to revise the Spring Creek Precinct Structure Plan proposed in Amendment C114surf to provide for lower residential densities, larger lot sizes and vegetated buffers.
b.Option 2: a ‘green break area’ whereby Spring Creek would form part of the surrounding green break between Torquay-Jan Juc and Bellbrae. The proposed protected settlement boundary would be applied at Duffields Road and the area between Duffields Road and Bellbrae would be rural land.
36.Either option would significantly change the residential development opportunities indicated by the rezoning of the land in 2014 to Urban Growth Zone Part A, and what was advanced in the proposed Spring Creek Precinct Structure Plan forming part of Amendment C114surf.
37.The Advisory Committee recommended against the two options referred to it, and instead relevantly recommended:
Spring Creek: the area already in the Urban Growth Zone should be included in the protected settlement boundary and be permitted to develop, subject to a further limited review of the Council adopted Precinct Structure Plan and Native Vegetation Precinct Plan. All other land in the Spring Creek Valley should be located outside the protected settlement boundary and then be reviewed as part of the 10 year strategic review of the [declared] area...
38.I thank the Advisory Committee for its extensive work, and its advice with respect to the draft SPP. The Advisory Committee’s report has been of great utility in exploring the issues, and the competing considerations.
39.My determination departs from the recommendation of the Advisory Committee because, in balancing the competing considerations, I have distributed weight to factors differently. I have given less weight to the history of planning decisions which predate the commencement of Part 3AAB of the PE Act and the declaration of this area as a distinctive landscape. While I have little doubt that those planning processes were robust, and considered all things relevant at that time, the introduction of this legislative framework and the declaration of this area is a matter which was intended to and which did alter the settings in which those historical planning decisions were made. In my assessment, I have also given significant weight to:
a.the protection and conservation of landscape values in the declared area;
b.community sentiment around township character and the future of their community; and
40.In my second reading speech to Parliament for the bill proposing to introduce the new Distinctive Areas and Landscapes regime, I outlined how government intended for the regime to operate, and how government proposed to use it:
…The bill strengthens existing planning controls and ensures that the significance of these distinctive areas is elevated in state policy.
…The bill, as proposed, will allow the government to better recognise those iconic, distinctive landscapes that communities value, creating a legacy for future generations of Victorians.
41.Surf Coast has been declared a distinctive area and landscape, enabling better protection of landscape values through the regime in Part 3AAB of the PE Act. In accordance with my second reading speech, I consider the importance of recognising and protecting distinctive attributes to be elevated for declared areas, and I have exercised my powers under the regime with that in mind.
42.As part of the broader Torquay Coast, Coastal Saltmarshes and Woodland landscape of State significance, the landscape of the Spring Creek valley is significant, distinct, and valuable, and substantial weight should be given to protecting these attributes when determining settlement boundaries within declared areas. The application of the protected settlement boundary will ensure that the landscape significance of the remaining undeveloped land in the Spring Creek valley acts as a substantive green break and is fully preserved. The broad landscape of the Spring Creek valley is a landscape of state significance, and it is artificial to divorce that part of the Spring Creek valley zoned Urban Growth Zone Part A from the broader landscape. However, even if considered in isolation to the surrounding landscape, I remain of the view that the Spring Creek land presents as a significant distinctive landscape and that substantial weight should be given to protecting this attribute when determining settlement boundaries within the declared area.
43.The Advisory Committee took the view that it was unfortunate to revisit the planning history of Spring Creek, given the strategic planning carried out with respect to the area over several years, and the rezoning in 2014. In my view, it is not unreasonably disruptive to the orderly planning of the declared area to excise the land from the settlement boundary now. At present the land in question lies within a township boundary set in 2014, long before the enactment of the distinctive landscape regime. The current planning controls do not permit development to occur, and no development has occurred. The future development of this area has been known to be under review since 2018.
44.I accept that my conclusions may have an impact, financially and in other respects, on some of the landowners of Spring Creek, in that what may have seemed an increased potential for future development in 2014 will in due course be removed if the finalised Surf Coast SPP is approved by the Governor-in-Council. If that occurs, the approval of Amendment C114surf will be prohibited by section 46AZC of the PE Act. The zoning of Spring Creek will also need to be considered at an appropriate time for consistency with the finalised Surf Coast SPP. Despite these impacts on some private landowners west of Duffields Road, it is incumbent on me to prepare the Surf Coast SPP in accordance with the PE Act, including by having regard to the purpose and objectives of the PE Act set out in sections 1 and 4 of that Act.
45.In addition to considering the financial and other impacts on landowners who had hoped to develop this land, I am required to consider the views of the local community. While the views of the community were not uniform – indeed a number of parties advocated for or were open to conventional or low-density residential development at Spring Creek - there was strong support in the community consultation for the protected settlement boundary to be set at Duffields Road. Of the 3,163 submissions that were received during public consultation, 94% related to Spring Creek with 73% of submitters expressing support for the protected settlement boundary to excise Spring Creek. These submissions related primarily to landscape and environmental protection, and loss of township character. It is clear that the community strongly value these attributes of the declared area and that substantial weight should be given to protecting these attributes when determining settlement boundaries within declared areas. The Surf Coast Shire Council (Council) also supported the protected settlement boundary being set at Duffields Road. I have given these matters considerable weight in reaching my conclusions.
46.Duffields Road, as a substantial road, also presents as an effective and orderly township boundary. Under the low and conventional density models for development in Spring Creek, the settlement boundary would likely be delineated by a relatively minor road servicing the new subdivision, with more potential for pressure for development to the west.
47.I am satisfied that my conclusion about this settlement boundary will not compromise land supply in the township, and in any event, land supply constraints would not be a reason to facilitate conventional subdivision in an area declared as a distinctive landscape. Land supply and demand analysis included in the Surf Coast Settlement Background Paper, together with current Victoria in Future population projections, suggest that Spring Creek is not essential to maintaining housing supply in the Surf Coast Shire for the next 10 years. Excluding Spring Creek from the settlement boundary would reduce greenfield housing supply, when compared with the low density and conventional density development models for Spring Creek. This may place pressure on infill development, which could impact on township character in a different way to expanded greenfield areas. This can be sensitively managed through planning controls and policy. Clause 11.02-1S of the Surf Coast Planning Scheme requires that land is available to accommodate 15 years of land supply on a municipal basis, not town by town basis, and the Council's strategic planning provides significant land supply in other parts of the municipality including Winchelsea. Additionally, although a settlement boundary provides long term certainty, it is not immoveable should circumstances change.
48.In arriving at a settlement boundary for Torquay – Jan Juc, there is a tension between competing considerations, in particular the protection and conservation of landscape and environmental attributes, township character, orderly planning and housing supply. On balance, I consider the desirability of protecting landscape values and responding to community sentiment in relation to landscape values, environmental values and township character to outweigh other competing considerations.
The plaintiffs’ first four grounds of review challenge the validity of the Finalisation Decision.
Ground 1 – Did the Minister consult as required by s 46AW?
The plaintiffs’ first ground of review concerns the consultation obligation in s 46AW of the Planning Act.[29] The plaintiffs contend that the Finalisation Decision is affected by jurisdictional error because the Minister failed to consult with each responsible entity for the area, the local community, and any other person that the Minister considers may be affected by the Surf Coast SPP while preparing the Surf Coast SPP, as the Minister was required to do under s 46AW.
[29]Set out at [27] above.
Plaintiffs’ submissions
The plaintiffs first submitted that a failure to comply with the consultation obligation would render the Finalisation Decision invalid. Based on Project Blue Sky Inc v Australian Broadcasting Authority,[30] they identified the following indicators that the legislature intended that a breach of a procedural requirement would result in invalidity:[31]
[30](1998) 194 CLR 355 (Project Blue Sky).
[31]Project Blue Sky, [94]–[98] (McHugh, Gummow, Kirby and Hayne JJ).
(a) First, whether the statutory requirements regulated the exercise of functions already conferred or was an ‘essential preliminary’ to the exercise of a function.
(b) Second, the nature of the statutory requirement and in particular whether it had a ‘rule-like quality’ that could be easily identified and applied.
(c) Third, the public inconvenience that would result if non-compliance meant that a decision was legally ineffective.
By reference to the Full Court of the Federal Court’s application of those indicators to the obligation to consult considered in Kutlu v Director of Professional Services Review,[32] the plaintiffs argued that I should conclude that non-compliance with the consultation obligation renders the Surf Coast SPP invalid. They drew attention to the following matters:
[32](2011) 197 FCR 177, [18]–[20], [25], [28] (Rares and Katzmann JJ), [74], [77], [81], [94], [98] (Flick J) (Kutlu).
(a) First, they said that the use of mandatory language in s 46AW, specifically the requirement that the Minister ‘must consult’, suggests that the consultation obligation is an essential precondition to the exercise of the power to prepare a statement of planning policy.
(b) Second, the plaintiffs submitted that s 46AW has a ‘rule-like quality’ that is easily identified and applied. Although s 46AW does not prescribe how the consultation obligation is to be discharged, ‘consultation’ is a term that carries with it a ‘responsibility to give those consulted an opportunity to be heard and to express their views so that they may be taken into account’.[33]
[33]Referring to TVW Enterprises Ltd v Duffy (No 2) (1985) 7 FCR 172, 179; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Ltd (2010) 198 IR 382; [2010] FCA 591, [44]–[45] (CEPU v QR Ltd).
(c) Third, they characterised the consultation obligation as a key aspect of the scheme provided for in Pt 3AAB of the Planning Act. They pointed out that a planning scheme amendment prepared by the Minister to give effect to a statement of planning policy is exempt from the public exhibition and submission procedure that applies to most planning scheme amendments.[34] They said that the consultation carried out under s 46AW is a proxy for the consultation that would otherwise be required by Divs 1 and 2 of Pt 3 of the Planning Act for a planning scheme amendment.
(d) Fourth, the plaintiffs relied on the significant consequences of an approved statement of planning policy, especially where it includes a protected settlement boundary. They said that the consultation obligation is an important check on the Minister’s power under Pt 3AAB.
(e) Fifth, they pointed out that Pt 3AAB does not include a provision to the effect that a failure to consult in accordance with s 46AW does not result in invalidity. They contrasted this with the saving provision in s 39(7), which provides that a planning scheme amendment that has been approved is not made invalid by any failure to comply with Divs 1, 2, or 3 of Pt 3, or Pt 8 of the Planning Act.[35]
[34]Planning Act, s 46AZB(2); cf Pt 3, Divs 1–2 and s 39(1)–(5).
[35]Referring to Kutlu, [37] (Rares and Katzmann JJ).
The plaintiffs argued that the Minister had failed to consult as required by s 46AW in two separate ways.
The first contended failure arose from the fact that two declarations were made under s 46AO in relation to the Surf Coast declared area. The first declaration was made on 19 September 2019, and in September 2020 the Governor in Council extended the time for preparing, endorsing and approving the Surf Coast SPP to 19 September 2021. The second declaration was made on 16 September 2021, with effect from 20 September 2021. The plaintiffs referred to evidence of extensive consultation that had taken place while the first declaration was in force, including community and stakeholder engagement between May and November 2019, receipt of written submissions between November 2020 and January 2021, and the public hearings before the Committee in March and April 2021 preceding its report in June 2021. However, no consultation at all was conducted in the period following the second declaration.
The plaintiffs submitted that it was not open to the Minister to rely on the earlier consultation to discharge the consultation obligation in respect of the second declaration. They argued that Parliament clearly intended time to be of the essence when it prescribed a maximum two year timeframe for the preparation, endorsement and approval of a statement of planning policy under Pt 3AAB. They said that this timeframe could not be circumvented by simply ‘re-declaring’ a declared area to provide an extra year or two for the process to be completed.
In the plaintiffs’ submission, the effect of the second declaration was to start the process afresh, so that the Minister was required to recommence the process of developing and consulting on a statement of planning policy. They said that it was not open to the Minister to rely on the consultation undertaken while the first declaration was in force. In support of this argument, the plaintiffs referred to the transitional provision in s 46AZM, which expressly provides that consultation conducted by the Minister before the commencement of Pt 3AAB in relation to the Macedon Ranges Localised Planning Statement is taken to satisfy s 46AW for the purposes of a statement of planning policy for the Macedon Ranges area.
The second contended failure arose from the Minister’s attempt to confine the Committee’s consideration of the protected settlement boundary for Torquay-Jan Juc to the two options described at [44] above. The plaintiffs argued that the Minister’s consultation was flawed because he did not consult in relation to what they described as a ‘third option’ of a protected settlement boundary for Torquay-Jan Juc that included the Spring Creek area.
Accepting the flexibility of the consultation obligation,[36] the plaintiffs nevertheless submitted that the nature and circumstances of this case were such that the Minister was obliged to consult in relation to the third option. They relied in particular on the planning scheme amendment process for Amendment C114, which was well advanced by the time the first declaration took effect. The plaintiffs argued that the Minister’s failure to consult about the third option denied them and other parties identified in s 46AW a meaningful opportunity to present their views on that option.
[36]Referring to CEPU v QR Ltd, [44].
The plaintiffs referred to R (Moseley) v London Borough of Haringey,[37] a decision of the United Kingdom Supreme Court concerning the ingredients of a local council’s statutory obligation to consult ‘such other persons as it considers are likely to have an interest’ in the operation of a proposed new tax relief scheme.[38] Lord Reed held that meaningful public participation in that case required that consultees should be provided not only with information about the draft scheme, but also an outline of the realistic alternatives, and the reasons for the council’s preferred choice.[39] The plaintiffs submitted that meaningful consultation in this case required the Minister to provide information about the third option, as well as the first and second options, in order for interested parties to make an intelligent response.
[37][2014] UKSC 56 (Moseley).
[38]Moseley, [37] (Lord Reed, Lady Hale and Lord Clarke agreeing).
[39]Moseley, [39]–[41] (Lord Reed, Lady Hale and Lord Clarke agreeing).
Minister’s submissions
The Minister submitted that there was no requirement to re-consult following the second declaration, nor to consult specifically in relation to the plaintiffs’ third option. In addition, she argued that any failure to consult would not result in invalidity of the Surf Coast SPP.
In relation to the timing of consultation, the Minister emphasised that s 46AW requires consultation when preparing a statement of planning policy, and not following the declaration of an area under s 46AO. She submitted that the text of s 46AW does not support the proposition that consultation must start afresh upon the re-declaration of an area under s 46AO, notwithstanding that there is no material change to the terms of the declaration or the contents of the draft SPP. The Minister argued that the requirement to consult attaches to the preparation of a statement of planning policy, and not to the declaration of an area as a distinctive area and landscape. She said that the time periods specified in s 46AT provide no basis for reading s 46AW to require the consultation process be undertaken afresh when an area is re-declared under s 46AO. In other words, she said, the preparation of the statement of planning policy can take place at any time.
The Minister pointed out that there is no restriction in Pt 3AAB on making successive declarations under s 46AO in relation to the same area. In this case, the ‘declared area’ was the same under both the first declaration and the second declaration.
In the Minister’s submission, the construction of s 46AW advanced by the plaintiffs was not consistent with its text, and would result in significant practical inconvenience. Whether consultation undertaken before a declaration is made under s 46AO would satisfy s 46AW would always be a question of fact. She accepted that consultation that had taken place decades earlier would be unlikely to meet the requirements of s 46AW. But where there is continuity in consultation and no significant gap in time or material change in circumstances, the Minister argued that there was no reason why the Planning Act should be construed to require extensive consultation be redone. The inconvenience of that outcome was, the Minister said, a significant factor against the plaintiffs’ construction of s 46AW. She characterised her preferred interpretation as one that encouraged comprehensive and thorough consultation, as distinct from a condensed consultation with an eye on the timeframe.
The Minister refuted the suggestion that the consultation obligation operates as a proxy for the consultation required for a planning scheme amendment under Divs 1 and 2 of Pt 3 of the Planning Act. She submitted that s 46AW imposes a different, separate, and less prescriptive consultation requirement, with the evident purpose of permitting the Minister to proceed in a different way.
The Minister said that the transitional provision in s 46AZM did no more than preserve consultation conducted by the Minister in relation to the Macedon Ranges Localised Planning Statement before the commencement of Pt 3AAB. She contrasted that situation with the preparation of the Surf Coast SPP, which had not commenced before Pt 3AAB was added to the Planning Act. Accordingly, the Minister submitted, the transitional provision did not bear on the proper construction of s 46AW.
In response to the plaintiffs’ second argument about consultation, the Minister submitted that s 46AW did not require specific consultation about the third option for the location of the settlement boundary. She said that the consultation required by s 46AW must relate specifically to the statement of planning policy being prepared by the Minister; otherwise, it does not require the Minister to consult in relation to any specific matters. The breadth of the consultation obligation affords the Minister discretion as to the specific matters about which feedback may be sought.
In any event, said the Minister, it is clear that consultation did take place about issues raised by the draft SPP, including in relation to options available for the Spring Creek area beyond Options 1 and 2. The Minister pointed to evidence that her predecessor received submissions that Spring Creek should be allowed to develop in accordance with the Spring Creek PSP, that submissions were made to and received by the Committee on that subject, and that the Committee’s report and recommendations endorsed the Spring Creek PSP.
In those circumstances, the Minister submitted, it could not be accepted either that the Minister was obliged to consult in relation to a third option, or that he failed to do so.
The Minister sought to distinguish Moseley from this case, on the basis that it was a case in which people affected by the proposed scheme were not made aware of the rejected alternative options, which would have enabled them to make an intelligent response in respect of the Council’s preferred alternative. She contrasted that situation with this case, in which the plaintiffs were well aware that there was an alternative to Options 1 and 2 in the draft SPP, and were able to press their case for a third option with expert evidence, legal submissions, and advocacy before the Committee. The plaintiffs were able to make an intelligent response to the draft SPP without an explicit invitation to provide views about the third option.
Further, the Minister argued that a failure to comply with s 46AW would not have resulted in invalidity of the Finalisation Decision or the Surf Coast SPP. She submitted that this case was readily distinguishable from Kutlu, in which the statute required the Minister to consult with the Australian Medical Association before making certain appointments, and to have regard to its advice before exercising the power of appointment. Although s 46AW uses mandatory language, the Minister said that the broad nature of the consultation obligation and the text, context and purpose of the provision indicated that it did not have the requisite ‘rule-like quality’. The Minister also relied on the significant inconvenience that would result from a finding of invalidity, in this case due to the extensive consultation that had taken place regarding the Surf Coast SPP.[40]
[40]Referring to Clayton v Heffron (1960) 105 CLR 214 at 247 (Dixon CJ, McTiernan, Taylor and Windeyer JJ).
Finally in relation to this ground, the Minister submitted that any failure to consult was not sufficiently material to give rise to jurisdictional error.[41]
[41]Referring to Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, [45] (Bell, Gageler and Keane JJ); MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506, [30]–[31], [33], [35], [38]–[39], [51] (Kiefel CJ, Gageler, Keane and Gleeson JJ); and the recent summary of the principles in EJK18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 713, [28].
Consideration
I am not satisfied that there was any failure by the Minister to consult in accordance with s 46AW of the Planning Act when preparing the Surf Coast SPP. In summary:
(a) The consultation that took place before the second declaration took effect on 20 September 2021 was consultation undertaken ‘when preparing’ the Surf Coast SPP for the Surf Coast declared area;
(b) Section 46AW did not oblige the Minister to consult in relation to the third option for the Spring Creek area;
(c) Even if it had, the fact that the Minister did not seek views about the third option did not deny anyone — least of all the plaintiffs — a meaningful opportunity to make an intelligent response about the placement of the protected settlement boundary for Torquay-Jan Juc.
I elaborate on these conclusions in the following paragraphs.
In light of my conclusions, it is not necessary to determine whether a failure to comply with s 46AW would have resulted in the invalidity of the Surf Coast SPP, and the question of materiality does not arise.
The consultation took place ‘when preparing’ the Surf Coast SPP
Section 46AW requires the Minister to consult three categories of persons ‘when preparing a Statement of Planning Policy for a declared area’. The only temporal requirement in the provision is that the consultation take place when the Minister is preparing the statement of planning policy for the relevant declared area. The text of the provision does not indicate that the consultation must take place while a declaration under s 46AO is in effect.
The plaintiffs’ argument had an implicit premise that there was something untoward about the second declaration being made on the expiry of the maximum two year period prescribed in s 46AT(3) for the preparation, endorsement and approval of the Surf Coast SPP. I cannot discern a textual basis in Pt 3AAB for that premise. There is no limitation in Div 2 of Pt 3AAB on a second or subsequent declaration under s 46AO in respect of the same geographic area. The effect of the timeframe prescribed in s 46AT is that the period in which a statement of planning policy may be approved for a declared area will lapse after two years. It is open to the government of the day to continue the policy process by making a further declaration in respect of the area, as is permitted by s 46AO. In other words, there must be ongoing political support for the development of the statement of planning policy if the process is to continue beyond two years. That does not carry with it a requirement to recommence consultation about the statement of planning policy if and when a further declaration is made in relation to the same declared area.
The interpretation of s 46AW advanced by the plaintiffs has no obvious policy rationale and, at least in this case, would result in pointless repetition of the extensive consultation that had taken place before 19 September 2021. It is impossible to prefer an interpretation with such wasteful and inefficient consequences, in the absence of clear words in Pt 3AAB to support it.
I accept the Minister’s submission that it will be a question of fact in each case whether prior consultation took place ‘when preparing’ the relevant statement of planning policy. Consultation that took place many years earlier, or in relation to a different geographic area, or in materially different circumstances may well not satisfy s 46AW. However, in this case, the consultation that took place before September 2021, culminating in the public hearings held by the Committee and its report to the Minister in June 2021, plainly did satisfy s 46AW. The draft SPP published in November 2020 was the focus of the consultation process, and the Committee’s consideration and report, and was the basis for the Surf Coast SPP that was ultimately approved by the Governor in Council in October 2022.
I also accept the Minister’s submission that the transitional provision in s 46AZM does not affect the meaning of ‘when preparing’ in s 46AW. Section 46AZM is directed to preserving consultation that took place before the enactment of Pt 3AAB, in relation to a separate policy development process for the Macedon Ranges, under the pre-existing provisions of the Planning Act. It provides no indication as to whether consultation that took place under a lapsed declaration meets the requirements of s 46AW when a further declaration is made in relation to the same area.
The consultation encompassed the ‘third option’ for the Spring Creek area
While s 46AW obliges the Minister to consult when preparing a statement of planning policy for a declared area,[42] with the entities, groups and persons specified in sub-ss (a)–(c), it provides great flexibility as to how the consultation is to take place. The meaning of ‘consult’ in s 46AW is a matter of statutory interpretation, and is not resolved by importing the meaning given to that word in other statutory contexts or by the common law.[43]
[42]Cf Planning Act, s 20(5), considered in Tok Holdings Pty Ltd v Minister for Planning [2021] VSC 470, [80]–[92].
[43]Tok Holdings, [81], rejecting reliance on the common law duty of fairness embraced by Lord Wilson in Moseley, [24]–[25] (Lord Kerr agreeing).
Like the statutory duty to consult considered in Moseley, the consultation obligation in s 46AW should be construed by reference to its purpose.[44] That purpose is not spelled out in Pt 3AAB, but appears to include that responsible public entities, the local community, and other persons who may be affected by the statement of planning policy are able to participate in its development, and that the Minister has the benefit of their input when preparing the policy. In order for that purpose to be achieved, the consultation should be genuine and should relate to the statement of planning policy that is being prepared by the Minister. A sham consultation process will not suffice. Beyond that, it is a matter for the Minister what form the consultation is to take.
[44]Moseley, [38] (Lord Reed, Lady Hale and Lord Clarke agreeing).
There may be circumstances in which genuine consultation under s 46AW will require the Minister to identify alternatives that have been considered and rejected when preparing a draft statement of planning policy, in order that the persons being consulted can make an intelligent response. That is not this case.[45]
[45]Cf Moseley, [39] (Lord Reed, Lady Hale and Lord Clarke agreeing).
Here, the ‘third option’ was well developed and widely understood, as a result of planning processes and community debate going back to at least 2013. It was the subject of the Spring Creek PSP and Amendment C114, which was adopted by the Council in October 2017 but not approved by the Minister. In the draft SPP, the Minister indicated that he was considering two alternative options for the Spring Creek area. However, anyone who supported the approval of Amendment C114 was free to put that position during the consultation process for the draft SPP, which is what in fact occurred.
Unlike the applicants in Moseley, the plaintiffs were well resourced and well informed about the other alternatives. They were able to provide an intelligent response to the draft SPP, and did so in detailed written submissions to the Committee.[46] They supported their response with expert evidence, and engaged solicitors and senior and junior counsel to represent them before the Committee. Their advocacy was so persuasive that the Committee endorsed the plaintiffs’ position over either of the Minister’s preferred alternatives. There is no doubt that the Minister had the benefit of the plaintiffs’ input on the future of the Spring Creek area when preparing the Surf Coast SPP and before making the Finalisation Decision.
[46]The plaintiffs made an initial written submission to the Committee dated 29 January 2021, a 75 page written closing submissions dated 16 April 2021, and a further 22 page written closing submission dated 28 April 2021.
For those reasons, the nature and circumstances of this case did not require the Minister to consult about his non-preferred third option for the Spring Creek area. I am satisfied on the evidence that the Minister engaged in a genuine process of consultation in relation to the draft SPP, in which the plaintiffs were meaningfully and effectively engaged.
Ground 1 is not made out.
Ground 2 – Was the Finalisation Decision legally unreasonable?
The plaintiffs’ second ground challenged certain conclusions regarding housing supply expressed by the Minister in the Reasons.[47] The plaintiffs contended that these conclusions were findings that were material to the Finalisation Decision, and said that it was not open to the Minister to make these findings in circumstances where:[48]
9.1the land supply and demand analysis relied upon by the Minister in making the Finalisation Decision assumes that the Spring Creek area would be developed for residential use;
9.2 the land supply and demand analysis relied upon by the Minister in making the Finalisation Decision did not take into account data in relation to housing supply in the Surf Coast shire in the period between March 2021 and the time of the Finalisation Decision;
9.3 the housing market in Torquay is substantially different to the housing market in Winchelsea and, in any event, the available supply of housing in Winchelsea is insufficient to ameliorate the impact of the Surf Coast SPP on housing supply in Torquay.
[47]Amended originating motion, [8]. The impugned conclusions are set out at [91] below.
[48]Amended originating motion, [9].
Accordingly, the plaintiffs argued, the Minister acted irrationally or unreasonably in making the Finalisation Decision.[49]
[49]Amended originating motion, [10].
Plaintiffs’ submissions
The plaintiffs accepted that legal unreasonableness is a high bar, and submitted that the following principles were relevant and not controversial:[50]
[50]Referring to Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, [11] (Kiefel CJ), [52] (Gageler J), [84] (Nettle and Gordon JJ), [135] (Edelman J); Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21, [17].
(a) The test of legal unreasonableness is stringent and context specific.
(b) The test of legal unreasonableness is a fact dependent exercise and involves a careful evaluation of the evidence.
(c) Where reasons are provided, they will be a focal point for that assessment.
(d) It would be a rare case to find that the exercise of a discretionary power was unreasonable where the reasons demonstrated a justification for that exercise of power.
(e) The court must not stray into merits review of a function invested in the decisionmaker.
The plaintiffs submitted that legal unreasonableness may be manifest in the reasoning process utilised by the decision-maker, where the decision lacks an evident and intelligible justification.[51] They accepted that where reasonable minds might differ about the conclusion to be drawn from the available evidence, a decision cannot be said to be legally unreasonable simply because one conclusion has been preferred to another. However, they argued that the Minister’s findings in respect of the impact of the Surf Coast SPP on housing supply in Torquay were simply not available on the basis of the information before him.
[51]Referring to Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [76] (Hayne, Kiefel and Bell JJ); Minister for Immigration and Border Protection v Stretton (2012) 237 FCR 1, [12] (Allsop CJ).
In the plaintiffs’ submission, the Minister made a number of findings in the Reasons relating to housing supply, which were material to his conclusion that the best course was to exclude the possibility of conventional residential subdivision in the Spring Creek area by placing it outside the settlement boundary for Torquay. The plaintiffs focused on the following statements in [47] of the Reasons:
(a) the settlement boundary imposed by the SPP ‘will not compromise land supply in the township’;
(b) land supply constraints ‘would not be a reason to facilitate conventional subdivision in an area declared as a distinctive landscape’;
(c) ‘Spring Creek is not essential to maintaining housing supply in the Surf Coast Shire for the next 10 years’;
(d) pressure on infill development, ‘which could impact on township character in a different way to expanded greenfield areas … can be sensitively managed through planning controls and policy’; and
(e) the Council’s ‘strategic planning provides significant land supply in other parts of the municipality including Winchelsea’.
The plaintiffs contended that the material before the Minister was not reasonably capable of supporting these findings. That material included land supply and data analysis included in the Surf Coast Settlement Background Paper,[52] published in November 2020, and in the Victoria in Future population projections published in July 2019 (VIF19),[53] when it was anticipated that the Spring Creek area would be subdivided and developed for residential use. The Committee had reached different conclusions from the Minister, stating in its report that:[54]
If land already zoned for urban development in Torquay is removed, it will result in significant pressures in Central Torquay and for other areas to be opened up, including other smaller coastal settlements that are even, more environmentally constrained than Torquay.
…
Should Spring Creek not be developed, there could be severe impacts on housing diversity and affordability in and around Torquay-Jan Juc.
[52]Department of Environment, Land, Water and Planning, Surf Coast Statement of Planning Policy: Settlement Background Paper (Draft background paper, November 2020).
[53]Department of Environment, Land, Water and Planning, Victoria in Future 2019 (Report, July 2019).
[54]Advisory Committee Report, 63.
The plaintiffs sought to rely on two expert reports in support of this ground of review. They submitted that this evidence was admissible on the question of whether the Finalisation Decision lacked an intelligible foundation.[55]
[55]Referring to Mackenzie v Head, Transport for Victoria [2021] VSCA 100, [153], [171]–[175]; Arnold v Minister Administering the Water Management Act 2000 [2013] NSWLEC 73, [129].
The first was a report prepared by Justin Ganly, a land economist, dated 12 October 2022.[56] Mr Ganly had produced an earlier report dated 4 March 2021 for the consideration of the Committee, and his evidence informed the Committee’s findings about housing supply in Torquay-Jan Juc.[57] In both reports, Mr Ganly pointed out that the analysis in the Background Paper assumed that the Spring Creek area would be developed, providing for an additional 1,940 dwellings. Making detailed reference to the Background Paper, the plaintiffs argued that the proposition that the Spring Creek area was not essential to maintain housing supply for the next ten years was unfounded, irrational, and legally unreasonable.
[56]Economic expert witness statement of Justin Ganly dated 12 October 2022 (Ganly report).
[57]Justin Ganly, Economic Expert Witness Statement – Draft SPP and landscape controls to implement Surf Coast DAL (Report, 4 March 2021).
· the objective to enhance the conservation of the environment in declared areas including the unique habitats, ecosystems and biodiversity of declared areas (s 46AN(b) PE Act).
Council might also consider that to endorse the SPP would not fully further the objective to facilitate the provision of affordable housing in Victoria because the SPP:
· would have the effect of restricting urban development in the Spring Creek UGZ area; and
· is inconsistent with the approach in Amendment C114.
During the Standing Advisory Committee hearings, Council in its opening submissions contended that (at paragraph 14):
Finally, because the Amending Act gives specific protection to landscapes and environmental values, it is appropriate, when determining whether the [SPP] meets the new objectives [in s 46AN of the PE Act], and [the matters which a Statement of Planning Policy must address in s 46AV of the PE Act], to place emphasis on those values. This does not mean that the objectives in s 4 of the Act become meaningless but that to the extent that the competing demands in s 4 must be resolved, the objectives in s 46AN, and the values they embody, may be emphasised. As such, it is entirely appropriate when considering preferences for future land use, or integrating competing planning considerations, that the [SPP] places “greater weight on protecting the landscapes around Torquay than on providing for the scale of population growth anticipated in Victoria in Future”, and “adopts a position that there is a greater community benefit in taking this course rather than allowing for the expansion of the settlement boundary into Spring Creek”.
The Standing Advisory Committee in its report of 25 June 2021 noted that “Part 3AAB does not provide any express or implied intention that the provisions of section 46AN are elevated above or override any other provision of the PE Act or the Planning Scheme” (page 43). Notwithstanding this, at the least, it is clear that the Council is required to consider various factors relevant to its decision based on relevant material and in consideration of the statutory framework. This process does not require consciously placing greater emphasis on one objective over another where there are competing objectives.
Council may consider these factors in reaching its decision.
Part 4 of the Officers’ Report set out the options available to the Council:
The following options are available to Council under section 46AX(1) of the PE Act:
1. Council may endorse the SPP; or
2. Council may refuse to endorse the SPP.
Under section 46AX(2) of the PE Act, the Minister for Local Government may direct the Council to endorse the document.
The Council should note that under section 46AT(2)(a) of the PE Act, the declaration for the declared area will lapse if the final SPP is not endorsed by all RPEs and approved by the Governor in Council by 20 September 2022. Under section 46AT(3) of the PE Act, the Governor in Council may approve an additional period for the preparation, endorsement and approval of a Statement of Planning Policy, not exceeding two years after the declaration of the declared area took effect. If the Governor in Council approves an additional period under section 46AT(3), then under section 46AT(2)(b) of the PE Act, the declaration for the declared area will lapse if the final SPP is not endorsed by all RPEs and approved by the Governor in Council before the expiry of the approved period.
The Officers’ Report concluded with observations about implementation of the Surf Coast SPP.
The annexures to the Officers’ Report were not reproduced in the minutes.
The third reference in the minutes was the resolution of the Council to endorse the Surf Coast SPP. The resolution, moved by Councillor Pattison and seconded by Councillor Bosworth, was in the following terms:
That Council endorses the Surf Coast Statement of Planning Policy released by the Minister for Planning on 28 April 2022 in relation to the Distinctive Area and Landscape Declaration.
The minutes record that the resolution was carried, with six councillors voting in favour and two against.
While the minutes did not note the debate on the resolution, the Council meeting was recorded and later transcribed. Councillors Pattison, Bodsworth, Allen, and Barker spoke in favour of the resolution, and Councillor Wellington spoke against. Individually, these five Councillors expressed different reasons for supporting or opposing the endorsement of the Surf Coast SPP. Of the remaining three Councillors, two voted in favour and one voted against the resolution. They did not speak during the meeting and there is no evidence of their individual reasons.
Ground 6 – Was the Endorsement Decision legally unreasonable?
In Ground 6, the plaintiffs contend that the Endorsement Decision was legally unreasonable, in that it lacked any evident and intelligible justification. The ground was set out in the amended originating motion as follows:
20Council identified as matters which “may” be relevant to its decision whether to endorse the Surf Coast SPP:
20.1 the objectives of the planning framework established by section 4(2) of the Planning Act;
20.2the objectives of planning in Victoria set out in section 4(1) of the Planning Act;
20.3 the objects of Part 3AAB of the Planning Act;
20.4the overarching governance principles set out in section 9(2) of the Local Government Act 2020.
21The Endorsement Minutes do not disclose, either expressly or by implication, that Council in fact considered any of the matters set out in paragraph 20 to be relevant to its decision whether to endorse the Surf Coast SPP.
22Further, and in any event, the Endorsement Minutes do not disclose, either expressly or by implication, how the matters set out in paragraph 20 come to bear on Council’s decision whether to endorse the Surf Coast SPP.
23In the circumstances described in paragraphs 20 to 22 above the Endorsement Decision was legally unreasonable in that it was arbitrary and lacked any evident and intelligible justification.
Plaintiffs’ submissions
The plaintiffs characterised the Council’s decision under s 46AX(1) of the Planning Act as a evaluative one, which required it to consider the merits of the Surf Coast SPP that it was asked to endorse. They acknowledged that the decision was a binary one — to endorse or not endorse — but said that this did not relieve the Council of the need to weigh various relevant objectives in the balance.
The plaintiffs’ argument about the Endorsement Decision focused on the minutes of the Council meeting on 23 August 2022, which the plaintiffs referred to as the ‘Endorsement Minutes’. They argued that the Endorsement Minutes revealed no coherent, intelligible justification for the Endorsement Decision, but rather showed that the Council lacked any clear sense of the nature and scope of the statutory power it was exercising. The plaintiffs said that the Endorsement Minutes showed that the Council had done no more than identify a series of factors that may have been relevant, without reckoning with how those matters bore on its decision whether to endorse the Surf Coast SPP.
By reference to Part 3 of the Officers’ Report, the plaintiffs said that the Council had failed to determine which of the various competing objectives should be given priority, and why. For that reason, the plaintiffs submitted that the Endorsement Decision was arbitrary and lacked an evident and intelligible basis.
The plaintiffs’ argument was based on the premise that the minutes of the Council’s meeting on 23 August 2022, including the Officers’ Report, alone represented the Council’s reasons for the Endorsement Decision. They argued that it was impermissible to refer to statements made by individual Councillors during the debate on the resolution to endorse the Surf Coast SPP. Otherwise, it would be impossible to scrutinise the rationality and hence the lawfulness of Council decision-making. The plaintiffs submitted that the mechanism for decision-making provided under the Local Government Act 2020 (Vic) confirms the primacy of the Council’s resolution, and the record of that resolution in the minutes, as the Council’s reasons for its decision. They referred to Bald Hills Wind Farm Pty Ltd v South Gippsland Shire Council[115] as an example of a case in which a council resolution was accepted as evidence of its reasoning process.
[115][2020] VSC 512, [87], [92], [94], [105], [108], [116].
Council’s submissions
The Council’s written submissions referred to provisions of the Local Government Act that prescribe its constitution and decision-making processes. The Council is a municipal council governed by the Local Government Act, a body corporate with perpetual succession,[116] and is constituted by its elected Councillors including the Mayor and the Deputy Mayor.[117] The Council drew attention to the following features of its decision-making:
[116]Local Government Act 2020 (Vic), s 14(1).
[117]Local Government Act, ss 12 and 13(2).
(a) Where the Council is empowered to do any act, matter or thing, the decision to do the act, matter or thing is to be made by a resolution of the Council, which relevantly means a resolution made at a Council meeting;[118]
(b) A Council meeting is a meeting of the Council at which all Councillors are, subject to the Local Government Act, entitled to attend and vote to the exclusion of other persons;[119]
(c) A question before the Council at a Council meeting is determined by each Councillor present being entitled to one vote. The question will be determined in the affirmative by a majority of Councillors voting in favour of the question. Conversely, a question will be determined in the negative by a majority of Councillors not voting in favour.[120]
[118]Local Government Act, s 59.
[119]Local Government Act, s 61(1).
[120]Local Government Act, s 61(5).
In its written submissions before trial, the Council did not dispute that the Officers’ Report and Addendum recorded the Council’s reasons for the Endorsement Decision.[121] However, it contended that those documents should be viewed in light of other relevant evidence, including that the Endorsement Decision was by majority resolution in accordance with the Local Government Act, that individual Councillors had also explained their reasons for voting for or against the resolution, and that the Council was not required by the Local Government Act or the Planning Act to provide reasons.
[121]The Addendum was Annexure 3 to the Officers’ Report, described above at [171(c).
In oral argument at trial, the Council put forward six propositions about discerning reasons for the Endorsement Decision:
(a) First, there is no common law duty imposed on all administrative decision-makers to give reasons.
(b) Second, reasons are in some cases required by statute and can in some cases be requested under the Administrative Law Act 1978 (Vic). No such request was made of the Council in this case.
(c) Third, there are obvious logical and evidential difficulties in the provision of a single set of reasons from a multi-member body such as the Council.[122]
[122]Referring to IW v City of Perth (1997) 191 CLR 1, [64]–[65] (Kirby J); Khabbaz v State Planning Commission (2023) 254 LGERA 165, [181] (Bleby JA).
(d) Fourth, it can be difficult to determine reasons for decision by inference in a document-heavy decision making process.
(e) Fifth, in cases where no reasons are provided at the time of decision, inferences might be drawn about the reasons and reasoning process from the available evidence. However, the strength and precision of those inferences will depend on the evidence, the nature of the decision, the nature of the decision-making body, and all of the prevailing circumstances.
(f) Sixth, where (as here) there is no common law or statutory duty to provide reasons, a decision-making body cannot be criticised for not providing reasons, and no adverse inference should be drawn from the absence of a statement of reasons.[123]
[123]Referring to Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173, [25], [36] (French CJ, Bell, Keane and Gordon JJ).
Applying those six propositions to the facts of this case, the Council submitted that there was a raft of evidence from which inferences could be drawn about its reasons for the Endorsement Decision. It acknowledged that this submission qualified its earlier acceptance in its written submissions that the Officers’ Report and Addendum recorded the Council’s reasons for decision. The Council said that it was not possible to discern with complete confidence the reasoning of the Council as a collective body from the available body of evidence.
Turning to the plaintiffs’ Ground 6, the Council drew a number of relevant legal principles from Minister for Immigration and Citizenship v Li.[124] It said that legal unreasonableness is a standard that is sensitive to both the statutory context and the facts of the particular case. In oral argument, the Council submitted that Endorsement Decision was unsuited to a challenge on the basis of legal unreasonableness for four reasons:
[124](2013) 249 CLR 332, [22], [25], [30], [66], [76] (Li).
(a) First, the range of considerations that could properly be taken into account in making the Endorsement Decision were very broad, and included many issues upon which reasonable minds might differ.
(b) Second, there was no dominant consideration revealed by the statute, and no mandatory relevant considerations for the Council in reaching its decision under s 46AX.
(c) Third, s 46AX provides a binary choice — to endorse or not endorse.
(d) Fourth, there was no obligation on the Council to provide reasons for the Endorsement Decision.
The Council argued that the plaintiffs’ submission on Ground 6 was premised on a method or style of decision-making that is inapposite to a multi-member, elected representative body such as the Council. It said that there was no proper basis to draw an inference that the Endorsement Decision was legally unreasonable in the sense alleged by the plaintiffs. In particular, the Council submitted that the contention that the Council did not engage with the relevant considerations in an intelligible or coherent way should be rejected because:
(a) There is no clear and definitive answer to the question of how various statutory objectives bore on the Endorsement Decision. It is necessarily a matter on which reasonable minds may differ.
(b) To the extent that the Council’s reasons were embodied in the Officers’ Report, they merely provide material from which arguments about the correctness of the Endorsement Decision may be crafted. The reasons are conceptually distinct from the Endorsement Decision and have no legal consequences in themselves. It is unsafe to assume that the Councillors were unable to form their own views with the assistance of the material provided to them, including the Officers’ Report.
(c) The Officers’ Report correctly identified that the Council needed to weigh the various factors, noting that the Surf Coast SPP would further some objectives but perhaps not further others.
(d) The Court should infer from the evidence about the decision-making process that all Councillors engaged in the necessary weighing of relevant and sometimes competing objectives.
In conclusion on this ground, the Council pointed out that legal unreasonableness as a ground of review is really concerned with identifying and rectifying abuses of power. It said that there was nothing abusive about the way it performed its role in relation to the Endorsement Decision, which it reached after an admirable process.
Minister’s submissions
The Minister submitted that the limited nature of the power to endorse under s 46AX meant that it would be rare that such a decision will infringe the applicable standard of legal unreasonableness. Section 46AX requires the making of a binary decision — to endorse or not to endorse a statement of planning policy — which requires the decision-maker to do no more that consider the statement and accept or acknowledge that they are capable of being bound by or implementing it. The Minister argued that the function of endorsement does not require any reconsideration of the merits, or balancing of competing objectives, by any of the wide range of responsible public entities that may be called upon to endorse a statement of planning policy under Pt 3AAB of the Planning Act.
The Minister characterised the plaintiffs’ argument on this ground as one that invited merits review. She said that the plaintiffs had not engaged with the task of establishing that the Endorsement Decision fell outside the range of acceptable outcomes. An assertion that the Council had failed to undertake a balancing of competing objectives was insufficient to satisfy the stringent standard of legal unreasonableness. Further, the Minister submitted that, to the extent that the Council was required to undertake a balancing exercise, the weight to be given to competing objectives was within the sole and exclusive discretion of the Council.
Consideration
Endorsement of the statement of planning policy by each responsible public entity is a precondition to its approval by the Governor in Council under s 46AY. The Council was one of eleven different responsible public entities that endorsed the Surf Coast SPP, and it is curious that the plaintiffs have only impugned the Council’s Endorsement Decision.[125]
[125]The other responsible public authorities that endorsed the Surf Coast SPP were Barwon Water; Southern Rural Water; the Corangamite Catchment Authority; the Great Ocean Road Coast and Parks Authority; Parks Victoria; the Head, Transport for Victoria; VicTrack; the City of Greater Geelong; the Victoria Planning Authority; and the Secretary within the meaning of the Conservation, Forests and Lands Act 1987 (Vic). Five separate Ministers responsible for these public entities also endorsed the Surf Coast SPP: the Minister for Water, the Minister for Environment and Climate Action, the Minister for Transport Infrastructure, the Minister for Local Government, and the Minister for Planning.
Although endorsement is a necessary step towards the approval of a statement of planning policy, the nature of a decision to endorse is not spelled out in Pt 3AAB. Section 46AX(1) provides, in relation to endorsement of a statement of planning policy for a declared area:
The Minister must give a copy of the draft Statement of Planning Policy to each responsible public entity specified in the Statement for endorsement by the entity and the Minister responsible for that entity.
While the provision implicitly confers a binary discretion on a responsible public entity — to endorse or not endorse — it says nothing about how that discretion is to be exercised, the considerations to be taken into account, or how they are to be weighed. In circumstances where s 46AW requires consultation to have taken place with responsible public authorities in the preparation of a statement of planning policy, no scope is given for further input on the merits of the policy. As the Minister submitted, s 46AX(1) requires each responsible public entity to consider the statement of planning policy and to accept or acknowledge that they will be bound by it and, in some cases, be responsible for implementing it. That appears to be the purpose of the requirement for endorsement; I am unable to discern any other purpose from the language and context of the provision.
In that statutory context, and in circumstances where the other ten responsible public entities all endorsed the Surf Coast SPP, it could not realistically be argued that no reasonable responsible public entity could have made the Endorsement Decision. The Council made one of the two decisions available to it, and the plaintiffs did not suggest that outcome was manifestly unreasonable. Rather, they criticised the reasoning that underpinned the decision, on the basis that the Council did not reveal how it had balanced the competing objectives identified in Part 3 of the Officers’ Report.
This argument was based on the flawed premise that the Council’s reasons were embodied in the Officers’ Report that was reproduced in the minutes of the Council’s meeting of 23 August 2022. The premise was flawed because the Council’s resolution endorsing the Surf Coast SPP did not refer to or adopt the Officers’ Report. While it provides evidence of the matters that were considered by the Council in reaching the Endorsement Decision, it was not a statement of reasons for that decision.
The Council was not obliged to give reasons for the Endorsement Decision, either at common law or under the Planning Act or the Local Government Act. In contrast with cases such as East Melbourne Group Inc v Minister for Planning[126] and Bald Hills, the Council did not voluntarily provide a statement of reasons for the Endorsement Decision. There is therefore no question of the Council being confined to its statement of reasons, as was the Minister in East Melbourne Group.
[126](2008) 23 VR 605.
In the absence of a formal statement of reasons, it may be possible to infer the reasons of an individual decision-maker from evidence that is probative of those reasons. That evidence will likely include the material that was before the decision-maker. In this case, I have the evidence that was before the Council when it was considering the Endorsement Decision, which included the Officers’ Report.
However, the Council is a multi-member body that makes its decisions by resolution.[127] In this case, the Endorsement Decision was made by a majority resolution. Six Councillors voted in favour of the resolution, of whom four spoke at the meeting, each providing different reasons for their decision to vote in favour. Two Councillors voted against, with only one of those expressing her reasons for opposing the resolution during the debate. It is not possible to discern one single, unified set of reasons for the Endorsement Decision from that evidence. It is evident from the debate that different Councillors reached different conclusions about the weight to be given to the competing considerations. Those conclusions appear to me to be matters about which reasonable minds could reasonably differ.
[127]Local Government Act, ss 12, 13, 59.
At best for the plaintiffs, the Officers’ Report represents some evidence of the Council’s reasoning process. However, it was not, and was not intended to be, a statement of reasons for the Endorsement Decision, and I could not find error based on the Officers’ Report alone.[128]
[128]Plaintiff M64/2015, [25] (French CJ, Bell, Keane and Gordon JJ).
The plaintiffs’ complaint that the Endorsement Decision was arbitrary is not sustainable, in light of the decision-making process that the Council in fact undertook. It received a written submission and heard oral submissions made on behalf of the plaintiffs. It had before it the final draft Surf Coast SPP, and the Officers’ Report that identified the range of relevant statutory objectives that Councillors might take into account. I have viewed the video recording of the Council meeting on 23 August 2022, and reviewed the transcript of the debate, which do not sustain any suggestion that the Council acted capriciously or arbitrarily in making the Endorsement Decision. I accept the submission for the Council that its decision-making process was admirable, and that Endorsement Decision involved no abuse of the Council’s power under s 46AX of the Planning Act.
Ground 6 is not made out.
Ground 7 – Did the Council misunderstand the law?
The plaintiffs also complained that the Council had misunderstood the law it was to apply in making the Endorsement Decision, as set out in Ground 7 of the amended originating motion:
24The Endorsement Decision was affected by jurisdictional error because in making the Endorsement Decision, Council proceeded on the basis that:
24.1“The question of whether or not Council should endorse the SPP is not a question of whether the SPP could be improved or whether Council would have preferred it if the SPP had been prepared in a different way”;
24.2“The Decision for Endorsement is not a decision as to whether in all respects the Council approves the SPP” whereas section 46AX(1) of the Planning Act required Council, as a responsible public entity, to determine whether to give support to the Surf Coast SPP.
25Accordingly:
25.1Council misunderstood the law that it was to apply in making the Endorsement Decision;
25.2further or alternatively, Council constructively failed to exercise its jurisdiction by failing to determine whether to give support to the Surf Coast SPP.
Plaintiffs’ submissions
At its heart, the plaintiffs’ complaint underpinning this ground was that the Council was wrong to treat its decision whether to endorse the Surf Coast SPP as no more than a rubber stamping exercise. They relied on two particular statements in the Endorsement Minutes — that is, the Officers’ Report reproduced in the minutes of the Council meeting on 23 August 2022. Those statements were:
(a) ‘The question of whether or not Council should endorse the SPP is not a question of whether the SPP could be improved or whether Council would have preferred it if the SPP had been prepared in a different way’; and
(b) ‘The Decision for Endorsement is not a decision as to whether in all respects the Council approves the SPP’.
The plaintiffs submitted that these statements revealed a misconception as to the nature and scope of the Council’s power under s 46AX(1). By reference to the Macquarie Dictionary definition of ‘endorse’, the plaintiffs said that ‘endorsement’ in s 46AX(1) connoted authorisation. They also relied on the context of Pt 3AAB, in particular s 46AZJ, which states that a statement of planning policy must not be inconsistent with a range of other legislation and instruments unless the responsible Minister ‘gives a specific written endorsement to the planning Minister authorising the inconsistency’. While the plaintiffs accepted that the decision whether to endorse a statement of planning policy is a binary decision, they said it is also a decision whether to authorise or give support to the policy, and requires more than merely formally acknowledging the statement and its contents. This authorisation and support was, the plaintiffs said, critical to the implementation of the statement of planning policy by responsible public entities.
Council’s submissions
The Council rejected the suggestions that it had misconceived the law and had done no more than rubber stamp the Surf Coast SPP. It said that it was patently clear from the evidence that the Council made its endorsement decision after engaging in an intellectual process which revealed an active consideration of the contents of the final draft SPP, its statutory task, and relevant considerations.
Further, the Council submitted, the statements relied on by the plaintiffs did not reflect any misconception of the Council’s statutory task. It characterised the statements as attempts to assist the Council in distilling relevant principles to guide their decision-making, consonant with its statutory task.
In relation to the meaning of ‘endorsement’ in s 46AX(1), the Council contended that the word connoted some level of acceptance short of approval or authorisation. Further, it said that substituting some other word or phrase for ‘endorsement’ was unhelpful in determining whether the Council had fulfilled its statutory function of deciding whether to endorse the Surf Coast SPP. It said that it was simply not open on the evidence to find that the Council had acted as a rubber stamp, given the careful and comprehensive consideration it in fact gave to the Endorsement Decision.
Minister’s submissions
The Minister took a different approach to this ground, contending that the Council’s function under s 46AX(1) was limited, and did not amount to authorising or giving support to the Surf Coast SPP. She said that if the legislature had intended s 46AX(1) to require responsible public entities to authorise a statement of planning policy, it would have said so — as it had done in s 46AZJ.
In the Minister’s submission, it would introduce significant inconvenience and unworkability to interpret s 46AX(1) as requiring every responsible public entity and relevant Minister to interrogate the merits of a statement of planning policy provided for endorsement. The Minister referred to the strict time frame for the approval of a statement of planning policy, reinforced by the subsequent introduction of a 28 day time limit for an endorsement decision under s 46AX.[129]
[129]Planning Act, s 46AX(3), introduced by the Building and Planning Amendment Act 2023 (Vic).
Consideration
There are three reasons why this ground is not made out.
First, and most significantly, it is absolutely clear from the evidence that the Council did not approach the Endorsement Decision as a rubber stamping exercise. To the contrary, it gave the Surf Coast SPP thorough and careful consideration, including receiving substantial written and oral representations from the plaintiffs. The Officers’ Report provided Councillors with a balanced assessment of the issues, directing their attention to relevant statutory objectives and other matters, and suggesting a methodology for considering them, without recommending which decision the Council should make. The resolution by which the Endorsement Decision was made was passed following a debate, during which individual Councillors expressed a range of views about the matters that influenced their vote. The Councillors evidently took their responsibility seriously, and there is not the slightest hint that they thought they could endorse the Surf Coast SPP without giving it proper consideration.
Second, the statements that the plaintiffs said revealed a misunderstanding of the law did not form part of any statement of reasons for the Endorsement Decision. Rather, the statements were part of the advice given to the Council by Council officers as to the question for its decision. The Officers’ Report was not adopted by the Council to explain its decision, and it is not possible to say whether or in what way statements made in it influenced the votes of each individual Councillor.
Third, I am not convinced that the statements carry the meaning attributed to them by the plaintiffs, when they are read in the context of the Officers’ Report as a whole. It was the case that the Council could either endorse the Surf Coast SPP, or refuse to endorse it. The plaintiffs accepted that the decision to be made under s 46AX(1) is a binary one. At that stage of the process, it was not open to the Council to suggest changes to the Surf Coast SPP, or to provide qualified endorsement. The Officers’ Report correctly advised the Council that the question was whether the Surf Coast SPP was acceptable, not whether it was perfect in every respect. It went on to provide a framework for the Councillors to make that judgment for themselves, by reference to relevant statutory objectives. The Officers’ Report did not advise the Council that endorsement was a mere formality or box-ticking exercise.
In light of those conclusions, it is not necessary to consider the finer shades of meaning of ‘endorsement’ in s 46AX(1). The plaintiffs have not shown that the Council did not fulfil its statutory function in making the Endorsement Decision.
Ground 7 is not made out.
Disposition
The plaintiffs have not shown any error on the part of the Minister in relation to the Finalisation Decision or by the Council in making the Endorsement Decision. As a result, no question of consequential invalidity arises in relation to the Governor in Council’s approval of the Surf Coast SPP on 25 October 2022.
I will make orders dismissing the proceeding, after hearing the parties on the question of costs.
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