Red Gem Growers & Packers Pty Ltd v Longwarry (Eastbound) Pty Ltd & Ors
[2008] VSC 457
•31 October 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION & PLANNING LIST
No. 8069 of 2008
IN THE MATTER OF s 148 of the Victorian Civil and Administrative Tribunal Act 1998
BETWEEN
| RED GEM GROWERS & PACKERS PTY LTD | Plaintiff |
| V | |
| LONGWARRY (EASTBOUND) PTY LTD & ORS | Defendants |
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JUDGE: | CAVANOUGH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 October 2008 | |
DATE OF JUDGMENT: | 31 October 2008 (Ex tempore oral reasons revised 13 November 2008) | |
CASE MAY BE CITED AS: | Red Gem Growers & Packers Pty Ltd v Longwarry (Eastbound) Pty Ltd & Ors | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 457 | |
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Application for leave to appeal pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 - Decision by tribunal that permit for freeway service centre not be issued – Finding by tribunal of lack of evidence of ‘identifiable need’ (within the meaning of the planning scheme) for the provision of services at the locality – No arguable error of law in construction of planning scheme or otherwise – Cardinia Planning Scheme clause 52.30
Natural justice – Without alerting applicant, tribunal refers to comment made by expert witness in another case – Comment not significant for purposes of present case – No substance in natural justice point - Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Porter | Falcone & Adams, Solicitors |
| For the Defendant | Ms M Quigley SC | Allens Arthur Robinson |
HIS HONOUR:
This is an application under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 for leave to appeal against a decision of the tribunal[1] to the effect that a permit should not issue to the appellant for a freeway service centre at the subject site in Nar Nar Goon.
[1]Red Gem Pty Ltd v Cardinia Shire Council [2008] VCAT 1504
The applicant needs to identify a question of law arising from the decision of the tribunal and to show that there is a real or significant argument, in the applicant’s favour, that error of law exists.[2] The decision below should be attended by sufficient doubt to justify the grant of leave to appeal.[3]
[2]Secretary, Department of Premier and Cabinet v Hulls [1999] 3 VR 331 at 335 [10].
[3]Ibid, 336 [12].
In Bredix Pty Ltd v Greater Geelong CC[4], the tribunal correctly said:
“28.Before deciding on any application for permit under the scheme the responsible authority and this tribunal on review must consider, as appropriate, the decision guidelines at clause 65 of the scheme. These guidelines require a decision maker to decide whether a proposal constitutes an acceptable outcome in terms of the decision guidelines.
29.The decision guidelines at clause 65 relevantly include the state and local planning policy framework, the purpose of the zone, any matters required to be considered under the zone controls, and the amenity of the area.”
[4][2007] VCAT 818 at 28 and 29.
In the present case the relevant planning controls are referred to in paragraphs 15 to 24 of the decision under review and there is no dispute about the accuracy of that account.
The critical provision of the relevant planning scheme is clause 52.30 entitled “Freeway Service Centre”. The purpose of that clause is stated as follows:
“To ensure that freeway service centres are appropriately designed and located.
To ensure that access to a freeway service centre from a freeway is designed to the requirements of the Roads Corporation.
To ensure that freeway service centres with access to a rural freeway provide only essential services and facilities which encourage drivers to stop and take an effective break at appropriate intervals in the interests of driver safety.
To ensure that any new freeway service centre meets an identifiable need to provide essential services and facilities along a freeway where those services and facilities are not readily available.
To ensure that the use of land for a freeway service centre does not adversely affect the amenity of surrounding land users.”
The concept of essential services and facilities is clarified by clause 52.30-1. No issue arises in that respect in the present case. Indeed, it is common ground that the proposal was duly found to meet all of the mandatory controls set out in clause 52.30. However, in relation to discretionary aspects, the stated purposes of clause 52.30 also needed to be taken into account by the tribunal. Clause 52.30-2, entitled “Decision Guidelines” provides:
“Before deciding on an application, in addition to the decision guidelines in clause 65, the responsible authority must consider:
•the state planning policy framework and the local planning policy framework, including the municipal strategic statement and local planning policies.
•the Freeway Service Centres Design Guidelines, May 1997.”
The Freeway Service Centres Design Guidelines of May 1997 were produced by the Department of Infrastructure. Their purpose (as is stated in paragraph 1.1) is to
“•Provide direction regarding the location, design and layout of freeway service centres, with particular reference to safety and access requirements, and to ensure that the objectives of the guidelines are met;
•Provide assistance to local councils when assessing the planning merits of proposals for freeway service centres;
•Confirm the expectations of the Minister for Planning and Local Government in relation to the performance of freeway service centres.”
The Design Guidelines relate to freeway service centres proposed to be located on declared rural freeways as identified in the document. They include the Princes Freeway (East) which is the subject of the present case. In clause 4.1 of the Design Guidelines it is stated that “service centres must be located at strategic intervals along rural freeways, preferably at no less than 50 kilometres from an existing or approved centre”.
In paragraph 25 the tribunal foreshadowed its approach to this matter as follows:
“25.From our consideration of the original submissions, the material presented at the hearing including other relevant decisions we, firstly, set out the principles which underpin our approach and identify three key questions which need to be answered as follows:
•does the proposal meet the mandatory requirements of clause 52.30.
•does the proposal have adequate strategic planning support;
·are there any external impacts of the proposal which are unreasonable?”
As I have mentioned, in the end the tribunal concluded that the proposal did meet the mandatory requirements of clause 52.30. It also concluded that there were no external impacts of the proposal which were unreasonable. However, the tribunal was not satisfied that the proposal had adequate strategic planning support.
The tribunal set out its approach to the main strategic principles and to the issue of “need” in paragraphs 31 to 33 of its reasons for decision, as follows:
“31.We have again adopted our approach from the Carwoode[5] decision in drawing on the principles derived by members Komesaroff and Hewet in Bredix v Greater Geelong CC[6] and RW and MM Anderson Nominees Pty Ltd v Greater Geelong CC.[7]
[5]Carwoode Pty Ltd v Cardinia SC (Red Dot) [2008] VCAT 1334.
[6][2007] VCAT 818.
[7][2007] VCAT 1204.
32.These principles are set out in paras 35(iii) to (ix) of the Anderson decision, which we have again summarised below ..
•freeway service centres make an important contribution to road safety primarily as a consequence of the role they play in encouraging drivers to stop and break their journey.
•there is no requirement on freeway service centre applicants to undertake a comprehensive strategic analysis to identify an optimum site or consider alternative sites.
•the planning scheme does however require an appropriate interval to be provided between freeway service centres which should be determined on a case by case basis, using a range of local factors such as local site content, amenity and local policy issues.
•in that context the 50 kilometre separation distance identified in the Design Guidelines is a guideline only and is less helpful in urban areas with more complex travel patterns and greater traffic volumes.
•proliferation of FSCs should be avoided for a range of reasons including site context, traffic safety, visual impact, local policies etc.
•the Design Guidelines must be considered as required by the Planning Scheme but as a Guideline and not as a mandatory control.
33.Given the type of issues raised in this proceeding and the prior attempts by the permit applicant to strike out the objections raised by the Applicant for Review, it is appropriate at this stage to reinforce that Clause 52.30 does require substantive consideration of the question of ‘identifiable need’ as set out in purposes of that Clause. In other words, the requirement that we consider the issue of ‘identifiable need’ was upheld by both Deputy President Dwyer and subsequently his Honour Justice Osborn in the Supreme Court.”
In the application before me, no criticism is made by the applicant of anything said in paragraphs 31 to 33 of the tribunal’s decision.
However, the applicant submits that the practical considerations which the tribunal regarded as relevant for the purpose of answering the question of need in fact went beyond the considerations which ought to have been thought relevant for that purpose. The applicant submits that the tribunal went considerably further than the principles enunciated by the tribunal in Bredix and repeated in Anderson, and that the issue in this proceeding is whether it was entitled to do so, having regard to the proper construction of the purposes set out in clause 52.30.
By reference to the reasoning in Bredix, the applicant submits in its detailed written outline of submissions that “identifiable need” in clause 52.30 has the following connotations:
“•The need is “of people travelling along the highways”, and is not of an economic nature;
•The need is to be satisfied by the provision of essential services and facilities which “encourage drivers to stop and take an effective break at appropriate intervals in the interests of driver safety”;
•The sites, at which the need should not be permitted to be satisfied, are limited only by the qualification which has been built into the description in the third purpose of an effective break ie at ‘appropriate intervals’, and by the qualification which has been built into the fourth purpose ie ‘where those services are not readily available’”.
The applicant submits that, in the result, a site which is the subject of a permit application for an FSC will satisfy an “identifiable need” unless another site providing the same services and facilities is located so close to the proposed FSC as to amount to a duplication of essential services and facilities. It also submits that whilst a proliferation may arise from circumstances other than duplication, the notion of proliferation is not relevant for present purposes. Further, the applicant submits that the purposes set out in clause 52.30 do not constitute a mandate for the tribunal to embark on a search for a minimum or optimum number of sites or to rank sites in some order of acceptability.
The applicant submits that, although the tribunal was dealing with a rural freeway, on the proper construction of the purposes set out in clause 52.30 it was not entitled to take the approach it did. In particular, the applicant submits that the tribunal embarked on the very thing that the tribunal in Bredix declined to do, namely requiring sites to be ranked in some sort of order of acceptability. The applicant submits that this is shown by paragraphs 51 and 60 of the tribunal’s decision, in which it indicated that evidence of an “identifiable need” should have been provided on behalf of the applicant, in the form of detailed evidence as to projected traffic and population growth, evidence of a lack of readily available facilities to promote an effective break, evidence that the proposal would not add to the proliferation of facilities in the area and evidence that the proposal was strategically located. It submits also that traffic and population growth figures are matters referrable to economic need, not to the interests of driver safety. It submits that the Tribunal erred by having regard to much broader and inchoate concepts of economic need, whereby it was deemed necessary for the permit applicant to demonstrate by reference to a calculation based on traffic and population growth that there was an acceptable economic opportunity of sufficient magnitude to warrant an additional FSC at or sufficiently close to the appeal site.
The applicant further submits that the tribunal’s analysis of the evidence of Messrs Crowder and Symons at paragraphs 52 to 59 inclusive and 61 to 66 inclusive of the reasons for decision appears to have confused the “identifiable need” referred to in the fourth purpose of clause 52.30 with the desirability of avoiding the creation of commercially unviable FSCs and with the question whether an additional FSC to the west of the Longwarry FSC would be viable, or would affect the viability of the Longwarry FSC.
In addition, the applicant submits that the tribunal either rejected or ignored what it describes as the uncontradicted evidence provided to the tribunal by the parties (in particular by Mr Lee-Archer on behalf of Roads Corporation, Mr Milner on behalf of Longwarry, and Mr Symons on behalf of Red Gem) with regard to the location of, and facilities provided at, every existing retail petroleum outlet on or in the vicinity of the Princes Freeway in the metropolitan area and the south east corridor, between Melbourne and Yarragon, and existing and expected volumes of west-bound traffic on the Princes Freeway in the vicinity of the appeal site till 2031.
Finally, the applicant’s proposed notice of appeal includes a natural justice ground (ground 11) to the effect that the tribunal wrongly relied on the expert evidence of a Mr Turnbull given in another proceeding (Carwoode, supra), without giving the applicant an opportunity to deal with that evidence.
Consideration of the applicant’s submissions
In my opinion the applicant’s submissions are, for the most part, based on a misreading of clause 52.30 of the planning scheme. It is clear that the reference to “(identifiable) need” in the fourth purpose of the clause is not a reference to the needs of individual drivers to receive something, but rather is a reference to a need in the abstract sense of a general obligation or duty or requirement to provide something. This is clearly shown by the words immediately following the expression “identifiable need”, namely “to provide essential services and facilities along a freeway where those services and facilities are not readily available”. I see nothing to the contrary in Bredix or in Anderson. In any event, previous decisions of the tribunal do not establish precedents binding on the tribunal, much less on this Court.
Accordingly, I do not think it is arguable that a planning authority or the tribunal is obliged to regard every proposed site as suitable for an FSC as long as it does not amount to a “duplication” of essential services and facilities and meets the mandatory requirements of clause 52.30.
Once that position is reached, all else, putting aside the natural justice point, is in the realm of fact, discretion and planning merits, being matters for the determination of the expert tribunal, not matters of law for the determination of this Court, subject only to the well-known, limited avenues for judicial review of such determinations[8], none of which, in my opinion, could, even arguably, be properly invoked in this case. Indeed the applicant’s proposed notice of appeal, which is a very lengthy document, does not clearly identify any specific question of law. As Beach J observed in Gray v Victoria[9], if a question of law arising from a tribunal’s determination cannot be stated succinctly and precisely “one tends to suspect that in reality no question of law is raised by the tribunal’s decision”.
[8]See Spurling v Development Underwriting (Vic) Pty Ltd [1973] VR 1 at 11; S v Crimes Compensation Tribunal [1998] 1 VR 83 at 88-89.
[9][2000] VSC 342, as noted in Pizer, Victorian Administrative Law, [V5102/1].
In any event to the extent that the notice of appeal does raise a question or questions of law, I am not persuaded that there is any argument of substance that could be mounted to establish error in relation to any such question of law.
It was not disputed by any party below that the section of freeway continuing east of Nar Nar Goon has a rural character: see paragraph 43 of the tribunal’s reasons. That distinguished the case below fundamentally from Bredix on the facts.[10] It potentially made the 50 kilometre separation guideline more relevant for the consideration of the tribunal in its discretion.[11] It provided ample planning justification for the tribunal’s apparent expectation that if Red Gem wished to have a permit for an FSC merely 18 kilometres west of the existing pair of FSCs at Longwarry and approximately the same distance east of the proposed FSCs at Officer, it should provide evidence, persuasive to the tribunal, on certain matters that, in my view, the tribunal was plainly entitled to regard as relevant, including evidence of likely traffic and population growth, evidence that there was a lack of readily available facilities to promote an effective break for drivers, evidence that the proposal would not add to the proliferation of facilities in the area and evidence that it was strategically located. In my view the applicant had had ample warning that the tribunal might be expecting evidence along those lines.
[10]See Bredix at [55]; Anderson at [35](vii).
[11]Accordingly, in paragraph 62, the tribunal said it was appropriate to give the 50 km separation distance “more weight” than in Carwoode.
There is obviously substantial room for overlap between the matters just mentioned. I am not satisfied that it is even arguable that the tribunal regarded any of them as being a sine qua non in every case. In particular, as to a point discussed at length today, I am not satisfied that it is even arguable that the tribunal believed that evidence demonstrating likely future traffic growth or population growth is necessary in every case. Rather, the tribunal merely regarded the traffic and population growth issues and the other issues as being matters of potential relevance on which, in this particular case, it reasonably considered that detailed evidence favourable to the applicant would be necessary in order to persuade it to grant the permit. It did not lay down or perceive any rule of law requiring evidence demonstrating a particular position in relation to each or any such matter in every case. Rather it merely treated the matters as relevant matters on which it required to hear detailed evidence in this particular case, and, in my view, it is clear beyond argument that it was fully entitled to do so.
The tribunal was clearly entitled to take into account the risk that an undue proliferation of facilities in the area would lead to some facilities becoming economically unviable or run down or under utilised. This was expressly recognised in Anderson.[12] The tribunal made no error of law in that regard.
[12]At [35](viii). See also, more generally, Kentucky Fried Chicken Pty Ltd v Gantidis 91979) 140 CLR 675 at 687.
Indeed, where there are a number of competing contemporaneous claims for permits, it may well be appropriate for a planning authority or the tribunal to consider the competing merits of the sites in question. Again, that very thing was done in Anderson.[13] However, it is unnecessary to say any more on that issue, because in the present case the tribunal did not reject the application on the ground that the site was not optimal or on the ground that some alternative site was preferable. The reasons why the tribunal rejected the application are succinctly summarised in paragraph 66 of its reasons (in a way that betrays no error of law), as follows:
“In conclusion, we see no material evidence before us to demonstrate that there is an identifiable need for this proposed FSC on the appeal site so as to promote an effective break for drivers. Similarly we see a lack of evidence that the relevant essential services and facilities are not readily available. If anything, the available evidence indicates to us that allowing a new FSC on the appeal site will cause a proliferation of FSCs in this region, which we consider would be a poor planning outcome.”
[13]At [50].
Nor did the tribunal err in law in relation to its handling of the evidence of the expert witnesses. It did not reject or ignore any of the evidence they gave. Rather, the tribunal duly took it all into account. The evidence did not persuade the tribunal that there was a likelihood of any significant growth in population or in traffic approaching Nar Nar Goon from the east in the short to medium term. It did not allay the tribunal’s concerns about “identifiable need”, undesirable proliferation and whether the appeal site was a “strategic” location for a new FSC.[14] I have not been referred to anything in the experts’ evidence that, even arguably, compelled a different result.
[14]At [59]-[66].
The natural justice point was not mentioned at all in the applicant’s detailed written outline of submissions, nor has Mr Porter, for the applicant, addressed it at all today in his oral submissions except by way of a faint initial reference. In any event, the requirements of natural justice apply only to material that is credible, relevant and significant to the decision to be made.[15] They govern what the decision-maker must do during the course of deciding how the power is to be exercised before the decision is reached.[16] “Credible relevant and significant” information is information that, objectively, cannot be dismissed from further consideration by the decision-maker before making the decision.[17] The classification of the information does not depend on whatever characterisation the decision-maker may have chosen to apply to the information when expressing reasons for a decision that has been reached.[18] In the present case, the tribunal, having referred to the tabling by a traffic expert, Mr Symons, of traffic forecasts “apparently obtained from Vicroads”, said[19]:
“We note that in the Carwoode case Mr Turnbull (a highly respected traffic witness) was of the view that Vicroads forecasts provided for that case were potentially too high.”
This was a mere passing reference to a comment (albeit coming from a highly respected source) that different forecasts in a different case were “potentially” too high. And in any event the tribunal went on immediately[20] to actually make use of the “traffic volumes diagram tabled by Mr Symons”, just as it was. Looking at these circumstances objectively, Mr Turnbull’s comment in Carwoode was plainly not “significant” for the purposes of the present case. The comment could readily and appropriately have been dismissed from further consideration by the tribunal before it reached its decision. And it clearly had no significant impact on the decision the tribunal ultimately made. Rather, the tribunal based its conclusions as to traffic issues on the evidence of the expert witnesses who were actually called in the present case. There is no substance in this point.
[15]Kioa v West (1985) 159 CLR 550 at 628-629 per Brennan J.
[16]Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at 95 [15].
[17]Ibid, [17].
[18]Ibid, [17].
[19]At [56].
[20]At [57].
The application for leave will be refused.
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