Tok Holdings Pty Ltd v Minister for Planning

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION & PLANNING LIST

S ECI 2020 03667

BETWEEN

TOK HOLDINGS PTY LTD (ACN 006 559 066)	Plaintiff
and
MINISTER FOR PLANNING	First Defendant
and
489 TOORAK PTY LTD AS TRUSTEE FOR 489 TOORAK TRUST	Second Defendant

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JUDGE:	EMERTON JA
WHERE HELD:	Melbourne
DATE OF HEARING:	10 & 11 June 2021
DATE OF JUDGMENT:	6 August 2021
CASE MAY BE CITED AS:	Tok Holdings Pty Ltd v Minister for Planning & Anor
MEDIUM NEUTRAL CITATION:	[2021] VSC 470

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VALUATION AND COMPENSATION – Amendment to Stonnington Planning Scheme to allow for mixed use development under special controls overlay and incorporated document containing conditions for use and development of specified land – Purpose of amendment to provide urgent economic stimulus in light of COVID-19 pandemic – Minister exercised power under s 20(4) of Planning and Environment Act 1987 (‘Act’) for exemption from notice requirements – Minister decided to consult with plaintiff and others on exemption decision – Whether Minister failed to properly consult with plaintiff – Requirements for consultation under s 20(5) of Act – Whether plaintiff given sufficient time to respond – No failure to properly consult – R (Mosely) v Haringey London Borough Council [2015] 1 All ER 495, Port Louis Corporation v Attorney-General of Mauritius [1965] AC 1111 considered, Returned & Services League of Australia (Victorian Branch) Inc, Glenroy Sub-Branch v Moreland City Council and the Carlton Cricket & Football Social Club Limited [1998] 2 VR 406, distinguished – Planning and Environment Act1987 ss 4, 6, 19, 20.

VALUATION AND COMPENSATION – Amendment gave responsible authority power to extend time for commencement or completion of development including after ‘expiry’ of incorporated document – Whether power to extend time impermissible after expiry of incorporated document – Whether Amendment unreasonable, logically fallacious and not proportionate to its purpose due to existence of extension of time provisions – Amendment not unlawful on basis of extension provisions – Proceeding dismissed – Harvey v Mutsaers (2012) 35 VR 389; [2012] VSCA 69 considered – Planning and Environment Act1987, ss 68, 69 – Interpretation of Legislation Act 1984, s 12, 25, 45.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N Tweedie SC with Mr R Chaile	Planning and Property Partners Pty Ltd
For the First Defendant	Ms E Porter	Victorian Government Solicitor’s Office
For the Second Defendant	Mr S Morris QC with Mr P O’Farrell	Norton Rose Fullbright

HER HONOUR:

Introduction

This proceeding concerns the validity of Amendment C306STON (‘Amendment’) to the Stonnington Planning Scheme, which permits the construction of a development on a site known as ‘Village Way’ at 489–505 Toorak Road, Toorak (‘Project’). The Project involves the construction of an eight level (plus three basement levels) mixed use development that includes office, food and drink premises, and a Coles supermarket.

The Amendment was prepared, adopted and approved by the first defendant, the Minister for Planning, under ss 8(1)(b), 12(1)(d), 29 and 35 of the Planning and Environment Act 1987 (‘Act’) on 3 August 2020. The purpose of the Amendment was to facilitate a ‘shovel ready’ development in order to stimulate the Victorian economy in the face of the COVID-19 pandemic.

Having regard to the need to facilitate the speedy development of the Project, in moving to prepare, adopt and approve the Amendment, the Minister exempted himself under s 20(4) of the Act from the applicable notice and consultation provisions for the amendment of planning schemes.

The plaintiff (‘Tok’) is the registered proprietor of premises close to the Project land at 443–459 Toorak Road, Toorak, which is also a mixed use development with a supermarket. Tok challenges the validity of the Amendment, as well as the Minister’s decision to exempt himself under s 20(4) from the applicable notice requirements of the Act (‘Exemption Decision’), and his decisions to prepare, adopt and approve the Amendment. Tok does so on two grounds:

(a) the Minister’s failure to properly consult with Tok under s 20(5) of the Act; and

(b) on the basis of the alleged unlawfulness of powers to extend time for the commencement of the Project in the relevant controls and on the basis that those powers are directly contrary to the express purpose and justification for the Amendment, rendering the Amendment legally unreasonable, logically fallacious and not reasonably proportionate to its purpose.

Tok seeks a suite of declarations, including that the Exemption Decision is beyond power and of no legal effect, and that the Amendment itself is void and of no effect. Tok also challenges the validity of intermediate decisions to prepare, adopt and approve the Amendment.

For the reasons that follow, Tok has failed to establish that the Exemption Decision was beyond power or that the Amendment is void and of no effect. It follows that the intermediate decisions stand. Furthermore, the provision for the extension of time to commence and complete the Project is valid and need not be severed.

As a consequence, Tok is not entitled to any of the relief claimed.

Legislative framework

The objectives of planning in Victoria, set out in s 4(1) of the Act, include ‘to provide for the fair, orderly, economic and sustainable use, and development of land’[1] and to ‘facilitate development in accordance with’[2] that objective. The objectives of the planning framework established by the Act include

to establish a system of planning schemes based on municipal districts to the principal way of setting out objectives, policies and controls for the use, development and protection of land[3]

and
to encourage the achievement of planning objectives through positive actions by responsible authorities and planning authorities.[4]

[1]Act, s 4(1)(a).

[2]Act, s 4(1)(f).

[3]Act, s 4(2)(b).

[4]Act, s 4(2)(g).

Section 6(1) of the Act describes what a planning scheme can provide for. It requires a planning scheme to ‘further the objectives of planning in Victoria’[5] and provides that a planning scheme for an area ‘may make any provision which relates to the use, development, protection or conservation of any land in the area’.[6] Section 6(2) sets out a non-exhaustive list of particular things that a planning scheme may do, including to ‘regulate or prohibit the use or development of any land’,[7] to ‘require specified things to be done to the satisfaction of the responsible authority’[8] and to ‘apply, adopt or incorporate any document which relates to the use, development or protection of land’.[9]
[5]Act, s 6(1)(a).
[6]Act, s 6(1)(b).
[7]Act, s 6(2)(b).
[8]Act, s 6(2)(h).
[9]Act, s 6(2)(j).

Section 6(5) of the Act provides that ‘a provision of a planning scheme may operate for a specified period’. The default position is that planning scheme provisions apply until they are removed or amended by subsequent planning scheme amendments.

Part 3 of the Act makes extensive provision for the amendment of planning schemes. Section 19 requires a planning authority to give notice of its preparation of a planning scheme amendment to local councils, affected owners of land and other relevant persons. The giving of notice triggers an entitlement in those persons to make submissions about the proposed amendment, as well as imposing an obligation on the planning authority to consider their submissions.[10] Where the planning authority, having considered a submission, elects not to abandon the amendment or change the amendment in the manner requested by the submission, the submission must be referred to a panel.[11] The panel must consider the submission and give the person making the submission a reasonable opportunity to be heard.[12] The panel is required to conduct public hearings[13] and is bound by the rules of natural justice.[14] It must report it findings to the planning authority[15] and the planning authority must consider the report before deciding whether or not to adopt the amendment.
[10]Act, ss 21, 22 and 23.
[11]Act, s 23(1).
[12]Act, s 24.
[13]Act, s 160.
[14]Act, s 161(1)(b).
[15]Act, s 25(1).

Part 3 of the Act then provides for adoption of the amendment by the planning authority[16] and its approval by the Minister.[17] An amendment comes into operation when the notice of approval of the amendment is published in the Government Gazette or on any later day or days specified in the notice.[18]
[16]Act, s 29.
[17]Act, s 35.
[18]Act, s 37.

However, the Act also provides for this extensive consultation process to be by-passed in certain circumstances.

Section 20(2) empowers the Minister, upon application by a planning authority, to exempt the planning authority from any of the notice requirements of s 19 and to impose conditions on that exemption, including a condition requiring the planning authority to give notice of the amendment in any specified manner.

Where the Minister is the planning authority (as here), s 20(4) empowers the Minister to exempt him or herself from any of the requirements of ss 17, 18 and 19 (and thus also from the consultation requirements in ss 21, 22 and 23) in respect of an amendment

if the Minister considers that compliance with any of those requirements is not warranted or that the interests of Victoria or any part of Victoria make such an exemption appropriate.

Section 20(5) then provides:

The Minister may consult with the responsible authority or any other person before exercising the powers under subsection (2) or (4).

Factual background

On 15 August 2019, a permit application was lodged with Stonnington City Council seeking permission for the Project, on behalf of the developer, Vicland Business Pty Ltd (‘Vicland’). On 25 October 2019, following public notification of the permit application, Tok lodged an objection with the Council.

On 20 February 2020, the Council issued a Notice of Decision to grant a permit for the Project (‘NOD’). The NOD contained extensive conditions for the development of the Project.

On 18 March 2020, Tok filed an application for review of the NOD in the Victorian Civil and Administrative Tribunal pursuant to s 82 of the Act. Tok was joined by two other objectors.

In April 2020, the Victorian Government established the ‘Building Victoria’s Recovery Taskforce’ (‘Taskforce’) in response to the coronavirus pandemic. The role of the Taskforce was to consider planning and investment options to provide stimulus to the Victorian economy through the building and development industry, particularly where planning delays were being experienced because of the pandemic. One of the functions of the Taskforce was to identify ‘shovel ready’ projects suitable for fast-tracking by accelerating planning and other statutory approval processes.[19]
[19]The Taskforce was made up of three members and supported by a secretariat and Priority Project Fast-Track Team, who assisted with administration, research, analysis and report writing. The Priority Project Fast-Track Team sat within the Department of Environment, Land, Water and Planning, and was made up of multi-disciplinary experts, including statutory planners from across the Victorian Government and contracted specialists. The Department of Treasury and Finance undertook project risk and probity assessments, which formed part of the overall assessment of submitted projects.

When the Taskforce made recommendations for suitable projects to the Minister, the Development Facilitation Team within the Department of Environment, Land, Water and Planning (‘Department’) prepared advice for the Minister about the recommended project and the intervention options available to fast-track its consideration.

On 8 May 2020, Vicland applied to the Taskforce to have the Project fast-tracked. On 22 May 2020, the Taskforce recommended that the Minister consider fast-tracking twelve development projects, one of which was the Project.

In early June 2020, the Development Facilitation Team undertook a planning assessment of the Project and prepared a brief to the Minister on the Project and the options to facilitate its development. To this end, the Team was provided with a range of documents about the Project, including revised architectural plans, Council meeting minutes, the NOD, a transport impact assessment dated 26 September 2019, various financial documents relating to the Project and the VCAT application documents and orders. The Team also prepared the supporting statutory documentation and a draft form of the Amendment for the Minister.

The Amendment introduced site specific planning controls to the Project land to enable the Project development and included an incorporated document (‘Incorporated Document’) setting out what were, in substance, the permit conditions for the Project in the NOD.

The initial brief to the Minister prepared by the Department is referred to in the affidavit material relied on by the Minister as the ‘Section 20(5) Brief’. It made reference to the Taskforce’s recommendation to consider fast-tracking the Project and confirmed that the Project was considered to be ‘shovel ready’ and to provide economic stimulus and employment creation. Specifically, the Project was estimated to involve capital expenditure of $215 million (inclusive of land value) and the creation of 550 construction and design jobs and 2,220 ongoing jobs.

The Section 20(5) Brief noted that the Project was the subject of a VCAT proceeding scheduled to commence on 21 September 2020, instigated by objectors to the grant of a planning permit for the Project. The Brief set out the issues raised in the statement of grounds in the VCAT proceeding, including, relevantly, that the visual bulk, height and design of the Project was inconsistent with the existing planning controls and that the proposed reduction in car parking would have an adverse impact on traffic.

The Section 20(5) Brief set out three options for the Minister to consider to facilitate the Project. The option designated 'preferred' was for the Minister to undertake consultation under s 20(5) Act with the Council, Vicland and objector parties to the VCAT proceeding before deciding whether to prepare, adopt and approve the Amendment ‘under’ s 20(4).[20] The other options were: to request a supplementary brief on whether to ‘call in’ the VCAT proceeding and refer the matter to the Priority Projects Standing Advisory Committee[21] for review; or to decline to intervene and allow VCAT to proceed to make its determination.
[20]That is, in the context of a decision having been made exempting the proposed planning scheme amendment from third party notice and hearing requirements.
[21]Known as the ‘Priority Projects SAC’.

The Section 25(5) Brief described the consultation under s 20(5) as involving seeking the ‘up-to-date’ views of the Council, Vicland and the objectors, on the basis that this ‘would ensure that the detailed views of all parties are known and would be reputationally [sic] prudent’. The Minister was advised that there was sufficient time to undertake consultation under s 20(5) and to prepare, adopt and approve a planning scheme amendment under s 20(4) before the hearing of the VCAT proceeding on 21 September 2020.

However, the Section 20(5) Brief also contained the observation, when explaining why it was open to the Minister to intervene under s 20(4) of the Act, that the views of the parties were known, as consultation had occurred through the planning permit process.

The Minister accepted the recommendation to consult under s 20(5) of the Act before deciding to exercise his power of exemption under s 20(4).

On 7 July 2020, the Minister wrote to Tok explaining that the Project had been identified by the Taskforce as one that met the development facilitation criteria and had been referred to him for facilitation. The letter continued:

A draft amendment, C306ston, has been prepared which proposes to apply the Specific Controls Overlay (SCO9) and associated incorporated document ‘“Village Way”, 489–505 Toorak Road, Toorak, June 2020’ to facilitate the development of the site consistent with the conditions proposed by the Notice of Decision to Grant a Permit (649/19) issued by council for the development of an eight-storey mixed-use building with basement car park and public through-block link development at 489–505 Toorak Road, Toorak.
Before considering whether to prepare, adopt and approve the amendment under section 20(4) of the Planning and Environment Act 1987, I am consulting with you under section 20(5) of the Act about the changes proposed to the Stonnington Planning Scheme.
I would appreciate receiving your comments about the draft amendment as it relates to the Stonnington Planning Scheme to assist in my consideration of this matter.

The letter from the Minister enclosed a draft of the Amendment, which included the Incorporated Document.

Letters in the same or similar form were sent to the Council, Vicland and the two other objectors. The recipients were given five business days in which to respond.

On 13 July 2020, Tok responded to the Minister’s invitation to comment, submitting that:

(a) five business days was not an acceptable amount of time to provide comment in all the circumstances and, because of the absence of detailed information about the basis upon which the Minister was considering the foreshadowed course of action, the invitation to comment and the amount of time provided to comment amounted to a denial of procedural fairness;

(b) the permit application which sought planning permission for the Project the subject of the Amendment was before the Tribunal;

(c) the Minister should not approve the Amendment by using powers under s 20(4) because:

(i) the Project was affected by significant and fundamental problems that had the capacity to have a lasting negative effect on Toorak Village;

(ii) the circumstances surrounding the invitation to comment on the Amendment, and in particular the timeframe to provide comment, amounted to a denial of procedural fairness;

(iii) the Minister could not make a reasonable or sufficiently informed decision on the planning merits of the proposed Amendment without an understanding of both sides of the debate;

(iv) a hearing, whether conducted at VCAT or before an Advisory Committee, was necessary to expose the fundamental problems associated with the Project;

(v) the course proposed was a deliberate attempt to circumvent Tok’s right to have the permit application (the proposed development) tested in VCAT; and

(vi) there would be no significant delay arising from the permit application being heard by VCAT as listed insofar as the hearing would occur in September 2020 and be decided within six weeks of hearing.

Tok identified the negative effects that it said the Project would have on the surrounding environment (Toorak Village), namely:

(a) parking and traffic impacts that would allegedly create an ‘irreversible negative legacy for Toorak Village’; and

(b) significant impacts on Toorak Village arising from the design of the proposed development.

Tok informed the Minister that these negative effects had been identified by its experts but, having regard to the status of the VCAT proceeding, the experts had not yet prepared their reports. Tok continued:

There is respectfully no way that you can make a reasonable or sufficiently informed decision on the planning merits of the course foreshadowed without an understanding of both sides of the debate. A hearing in relation to this matter, whether conducted at VCAT, or before an Advisory Committee, is necessary to expose the fundamental problems associated with this application.

It is plain from this correspondence that Tok considered that anything less than a hearing on the planning merits of the Project would be insufficient.

On 3 August 2020, the Minister received a further brief from the Department, referred to in the evidence as the ‘Amendment C306 Brief’. The Amendment C306 Brief outlined the responses to the consultation undertaken pursuant to s 20(5) of the Act. It recorded that the Council, Vicland and the objectors other than Tok had agreed to amended plans and supported fast-tracking the Amendment.

The Amendment C306 Brief summarised Tok’s submission as follows:

i. The proposal is affected by significant and fundamental problems from an urban design perspective and detrimental traffic and parking impacts on the activity centre.
ii. The five-business-day timeframe given was insufficient and amounts to a denial of procedural fairness, particularly given Tok Holdings intended to call expert witnesses at the VCAT hearing who had not yet been briefed by the date Tok Holdings received the letter from the Minister.
iii. A hearing of the matter before VCAT or an advisory committee would be necessary to expose the fundamental problems associated with the application.

The Amendment C306 Brief then briefly discussed the changes to the plans agreed by the parties other than Tok and reiterated that the Project would assist to stimulate the economy. It would do so by creating jobs, deliver high density development along the Principal Public Transport Network and support the ‘20-minute neighbourhood’ principle. The Brief then gave the Minister two options: refer the matter to the Priority Projects SAC for advice; or prepare, adopt and approve the Amendment.

In relation to the first option, the Amendment C306 Brief advised:

a. There is no requirement for this matter to be considered by a panel or advisory committee. If the matter is referred to the Priority Projects SAC, the Priority Projects SAC may decide to hold roundtable discussions and hear from the objectors and any relevant expert evidence. This would alleviate any potential issues of perceived procedural fairness by allowing objectors to be heard by an independent body.
b. It is understood that Tok Holdings has engaged three expert witnesses in anticipation of the VCAT proceeding to provide further details in support of their objection.
c.Referring the matter to the Priority Projects SAC will add an additional two to six weeks to the processing time for this matter. It is highly likely that the additional time required to undertake the process will still result in a decision on the development prior to the scheduled commencement of the VCAT proceeding on 21 September 2020.
d. There is a risk that Tok Holdings could make a scheduling argument if the Priority Projects SAC process runs concurrently to the VCAT proceeding, and that there may be difficulties participating in both.
e. You will be briefed following receipt of the Priority Projects SAC’s report to enable you to make a decision about whether to prepare, approve and adopt Amendment C306.

In relation to the option to prepare, adopt and approve the Amendment, the Amendment C306 Brief set out the mechanism to be used and advised:

The amendment is broadly consistent with state and local planning policy, including Planning Policy Framework at Clauses 11 ‘Settlement’, 15 ‘Built Environment and Heritage’, 17 ‘Economic Development’ and 18 ‘Transport’, as well as Local Planning Policy Framework at Clauses 21.04-1, 21.06-1, 21.06-3, 21.06-4, 21.06-5, 21.06-8 and 22.20.
The proposed development is supported by the council, and two of the three objectors party to the VCAT proceeding are satisfied with changes made to address their concerns. Overall it is considered that the development is generally consistent with the relevant provisions of the Stonnington Planning Scheme.

The Amendment C306 Brief concluded:

It is open to you to exercise your power of intervention under section 20(4) of the PE Act and exempt yourself from the requirements of sections 17, 18 and 19 of the PE Act and the regulations to prepare, adopt and approve this amendment.
a. Your intervention in this matter is warranted on the basis that:
i. The interests of Victoria make such an exemption appropriate because the prompt adoption and approval of the amendment will facilitate the timely delivery of a project that is shovel ready and will promptly stimulate the Victorian economy and create job and investment opportunities, and exhibition and notice of the amendment, submissions and a panel hearing on the amendment would delay the delivery of these economic and social benefits which are urgently required.

b. If you decide to choose this option, you may be criticised for:
i. Not affording Tok Holdings a reasonable opportunity to engage with this planning scheme amendment process, given it submitted that the time available to it to make a submission was not sufficient. DELWP Legal [redacted].
ii. Denying an objector their right to being heard at VCAT and undermining the permit application process and appeal rights. [redacted] legal advice [redacted].

On 3 August 2020, the Minister signed the Amendment C306 Brief, choosing 'Option B' in the Brief and thereby making the Exemption Decision. He also signed the document entitled 'Preparation, Adoption and Approval of an Amendment by the Minister for Planning' for Amendment C306, thereby approving the Amendment.

On the same day, the Minister gave reasons for exercising his powers of intervention under s 20(4) of the Act (‘Reasons’), stating:

I have decided to exercise this power for two independent reasons: first, I consider that the interests of Victoria make such an exemption appropriate; and second, I consider that compliance with the requirements is not warranted.

The Reasons discuss the benefits of the Exemption Decision in terms of the economic stimulus that will be provided and state that without the exemption, there would be delay associated with the usual notice and panel requirements, and the development would otherwise be delayed by the finalisation of the VCAT proceeding. As to the effects of the Exemption Decision on third parties, the Minister stated:

The development authorised by the amendment has been subject to a permit application process in which objections were received and considered by the Responsible Authority. Additionally, I have written to Stonnington City Council, [Vicland], and the objectors in the relevant VCAT proceeding to seek their views under section 20(5) of the PE Act regarding the form and content of the draft planning scheme amendment before making a decision to prepare, adopt and approve the amendment under section 20(4) of the PE Act.

As to whether the benefits of the exemption outweighed the effect on third parties, the Minister concluded that, having regard to the economic and social benefits arising from the timely delivery of the project facilitated by the Amendment, the benefits of exempting himself from ss 17, 18 and 19 of the Act and the regulations outweighed any effects of the exemption on third parties.

On 13 August 2020, notice of the approval of the Amendment was published in the Government Gazette. By virtue of s 4E of the Act, the Amendment came into operation on that date.

The Amendment

The Amendment applied a Specific Controls Overlay (‘SC Overlay’) to the Project land by specifying the land as SCO9 in the relevant planning maps, and in the Schedule to cls 45.12, 72.03 and 72.04 of the Planning Scheme, and inserted the Incorporated Document into the Scheme.

Pursuant to clause 45.12-1 of the SC Overlay, the Project land may be used or developed in accordance with the specific controls contained in the Incorporated Document. As discussed, those controls largely reflect the conditions in the planning permit that the Council intended to issue, as set out in the NOD. The Incorporated Document is, in substance, a permit to develop the Project land.

Pursuant to cl 45.12-2 of the SC Overlay, the specific controls contained in the Incorporated Document expire if:

• the use and development is not started within two years of the approval date of the Incorporated Document or another date specified in the Incorporated Document; or

• the development is not completed within one year of the date of commencement of works or another date specified in the Incorporated Document.

Clause 45.12-2 provides that the Council may extend these periods if a request is made in writing before the expiry date or within three months afterwards.

The Incorporated Document does specify another date for the commencement of development. Clause 7.0 provides that the Incorporated Document will expire if the development is not started within one year of the date of gazettal of the Amendment. The Council may extend the period if a request is made in writing before the control expires or within six months afterwards.

Grounds for review

By its Amended Originating Motion Tok has raised two grounds for review, the first relating to the adequacy of the consultation under s 20(5), the second relating to the provisions in the new controls for extending time for the commencement and completion of the development.

Tok has effectively abandoned grounds raised in the Originating Motion alleging that in preparing and approving the Amendment, the Minister failed to take into account a relevant consideration, being the significant effects on the environment identified by Tok, and acted in a way that was legally unreasonable in dismissing those effects. As a result, there is no direct challenge to the Amendment based on any alleged failure by the Minister to assess the merits of the Project according to law.

Furthermore, Tok does not impugn the Exemption Decision on the basis that there was no urgency to facilitate the Project and it is not pleaded that the Minister acted for any improper purpose in making the Exemption Decision or in preparing, adopting or approving the Amendment. In other words, Tok accepts that the Minister made the Amendment to facilitate the urgent development of the Project land and that that was a proper purpose.

Ground 1: Failure to properly consult

Ground 1 is that the Minister, having determined to exercise his power to consult with Tok under s 20(5), failed to consult with Tok in breach of s 20(5), in that the Minister:

(a) failed to give Tok a reasonable time to respond to his proposal;

(b) failed to give Tok a reasonable opportunity to provide materials that it had identified as relevant, and that were in fact relevant, to the planning merits of the proposed Amendment; and/or

(c) failed to give Tok an opportunity to comment on the materials relied upon by the Minister in relation to the planning merits of the proposed Amendment.

Tok’s submissions

Tok submits that on its proper construction, s 20(5) of the Act obliges the Minister, if he decides to exercise the power to consult with a person, to properly exercise the authority conferred by that provision. Once the Minister had determined that it was necessary to consult under s 20(5) of the Act, he was obliged to provide a true consultation within the meaning of the statutory provision. The Minister failed to do so as he did not give Tok a meaningful opportunity to consider and respond to the proposed Amendment.

This failure to consult, so Tok submits, invalidates the Minister’s decision under s 20(4) to exempt himself from the notice requirements of the Act (the Exemption Decision), and thus also his subsequent decisions to prepare, adopt and approve the Amendment.

Tok submits that, having decided to exercise his power to consult under s 20(5), the Minister was under an obligation, if he was to carry out a true consultation, to ensure that Tok was given:

(a) details of the material relied upon by the Minister in deciding to adopt the Amendment; and

(b) a reasonable time to consider the proposal and provide a response.

Tok submits that it raised with the Minister credible and plausible concerns about the planning merits of the Amendment and explained that those concerns were appropriately to be addressed by experts, which would take some time to arrange. In those circumstances, the specified five day period was not a reasonable timeframe and, as a consequence, Tok was not given a true or meaningful opportunity to comment on the proposal. It submits that the five day period appears to have been arbitrarily determined and that, having been informed that in the particular circumstances that period was inadequate and having been given a credible explanation as to why it was inadequate, the Minister made no attempt to ascertain whether some other reasonable period would allow the expert material to be prepared as part of the consultation. No explanation or justification was given for why a further period of time could not be offered to Tok.

In substance, Tok submits that while what is meant by ‘consult’ in s 20(5) will depend on the statutory text and context, as well as the specific facts and circumstances facing the Minister in considering whether to make an decision under s 20(4), the term ‘consult’ imports, at least, some basic or minimum requirements to ensure that what takes place is a ‘consultation’ within the ordinary meaning of the word.

Tok relies upon a number of authorities to advance the proposition that there are four basic requirements if a consultation process is to have sensible content. Most recently, in R (Mosely) v Haringey London Borough Council,[22] Lord Wilson of the UK Supreme Court restated the four ‘essential’ requirements as follows:

First, that consultation must be at a time when proposals are still at a formative stage. Second, that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response. Third … that adequate time must be given for consideration and response and, finally, fourth, that the product of consultation must be conscientiously taken into account in finalising any statutory proposals.[23]

[22][2015] 1 All ER 495 (‘Haringey’).

[23]Ibid 506 [25], quoting R v Brent London BC, ex p Gunning (1985) 84 LGR 168, 189 (Hodgson J).

These criteria were described as entailing ‘a prescription for fairness’.[24]
[24]Ibid 506–7 [25], quoting the Court of Appeal in R (on the application of Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts [2012] EWCA Civ 472, [9].

Tok submits that the same approach should be adopted in respect of the meaning of ‘consult’ in s 20(5) and submits, further, that the process of consultation must be consultation with respect to all matters which might be regarded as relevant to the decision by the Minister to exercise his powers under s 20(4) including, in this case, the Amendment.

Tok also relies on the decision of Brooking J in Grollo Australia Pty Ltd v Minister for Planning and Urban Growth and Development,[25] where his Honour stated that the term ‘consult’ in the pre-1993 version of s 20(4) likely had the meaning given by their Lordships in Port Louis Corporation v Attorney-General of Mauritius.[26] There, the Privy Council considered a statutory requirement to consult with the local council before altering the boundaries of a district. Their Lordships explained that the nature and circumstances of the consultation would depend on the context, but that certain minimum requirements were to be met. Importantly, the ‘requirement of consultation is never to be treated perfunctorily or as a mere formality’ and ‘the local authority must know what is proposed; they must be given reasonably ample and sufficient opportunity to express their views or point to problems or difficulties’.[27]
[25][1993] 1 VR 627 (‘Grollo’).
[26][1965] AC 1111 (‘Port Louis’).
[27]Ibid 1124.

The New South Wales Court of Appeal considered Port Louis in Leichhardt Municipal Council v Minister for Planning,[28] another of the authorities relied on by Tok in this case. Leichhardt makes it clear that where a statute requires ‘consultation’ this will usually require the person consulted to be given sufficient information about the relevant proposal, including such details as are necessary for the person to provide their views on the proposal.[29]
[28](1992) 78 LGERA 306 (‘Leichhardt’).
[29]Ibid 337–8 (Sheller JA, Priestley and Meagher JJA agreeing).

Tok accepts that s 20(5) gives the Minister discretion as to whether or not to consult. However, it submits that on the proper construction of s 20(5), once the Minister makes the decision that he will or should consult before exercising the power under s 20(4), he gives himself the authority to consult and is required by law to discharge that authority in a proper manner. If it were otherwise, the Minister could purport to consult and represent to the parties and the community that there was consultation, yet be free to engage in a sham process that met none of the legal requirements of consultation. According to Tok, once the Minister assumes the authority and obligation to consult, he or she needs to consult properly before the power under s 20(4) can be lawfully exercised. Requirements for ensuring ‘true’ consultation become mandatory.

For this proposition, Tok relies on the Court of Appeal decision in the RSL Case,[30] which concerned the construction of s 60 of the Act. At the time, s 60 provided that a responsible authority, when deciding whether to grant a permit, ‘must’ consider certain matters and ‘may’, ‘if the circumstances so require’, consider social and economic impacts. The Court of Appeal held that that once it had been decided that there might be or that there were relevant social and economic effects, the responsible authority had the authority to consider those effects and had to exercise the authority to consider them. Accordingly, in that context, ‘may’ imposed a mandatory requirement. Hayne JA said:

If ‘the circumstances appear to so require’ I am of the view that the responsible authority (and thus, on a rehearing, the Tribunal) is then bound to have regard to whichever of the four specified subject matters bears upon the issue. I do not accept that the expression ‘may consider’ is to be read in s 60(1)(b) as conferring a discretion on the decision-maker but rather, in the words of Jervis CJ in argument in MacDougall v Paterson, ‘the word “may” is merely used to confer the authority: and the authority must be exercised, if the circumstances are such as to call for its exercise’. … To adopt and adapt the language of Windeyer J in Finance Facilities, the responsible authority (and the Tribunal) are each given power to consider the matters mentioned in sub-s (1)(b) in forming their decisions but upon proof of the particular case out of which the power arises, that is ‘if the circumstances appear to so require’, the responsible authority, or the Tribunal (as the case may be) is then bound to consider them.[31]

[30]Returned & Services League of Australia (Victorian Branch) Inc, Glenroy Sub-Branch v Moreland City Council and the Carlton Cricket & Football Social Club Limited [1998] 2 VR 406; [1997] VSC 29 (‘RSL Case’).

[31]Ibid 414 [28] (citations omitted).

Tok submits that, by analogy, the word ’may’ in s 20(5) in fact imports obligatory requirements once the Minister has ‘assumed the authority’ to consult under that provision.

As to whether a failure to sufficiently consult invalidated the exercise of power under s 20(4), Tok referred to the indicia of legislative intention identified in Project Blue Sky.[32] It submitted that the effect of the structure of s 20 and the interrelationship between sub-sections (4) and (5) is that the exemption decision can be made without consultation, but if it is decided to engage in consultation, that needs to occur before the exemption power can be exercised. The words in sub-section (5) make it clear that consultation is to occur before the exercise of the power in sub-section (4), which means that consultation is a pre-condition to the exercise of the power to exempt. It is not open to the Minister to reach the conclusions required by s 20(4) until he satisfies the necessary condition of engaging in and completing the consultation that he has decided he needs to undertake.
[32]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 388–91 [91]–[93]; [1998] HCA 28 (McHugh, Gummow, Kirby and Hayne JJ) (‘Project Blue Sky’).

Tok further submits that there is nothing amorphous or uncertain about the requirement to consult in s 20(5). It is a requirement of the Act which is directed primarily towards the objective of ensuring appropriate public participation in planning scheme amendments and it is thereby linked, directly and necessarily, to one of the objectives of the Act.

Finally, Tok submits that, as it cannot have been intended that a deficient or ‘sham’ consultation process could support a lawful decision, in the absence of any other mechanism invalidity of the exemption decision is a necessary consequence to ensure compliance. In circumstances where, in order to satisfy the objectives of the Act, the legislature created an ‘intermediary step’ between there being public consultation and there being no public consultation, it is not in the public interest for decisions to be made on the basis of incomplete or inadequate consultation.

Defendants’ submissions

The Minister submits that he properly consulted with Tok within the meaning of s 20(5) of the Act and that, even if he failed to consult with Tok within the meaning of s 20(5), that failure did not render the Exemption Decision invalid.

It is common ground that consultation is not a mere formality. The Minister agrees that the word ‘consult’ means more than one party telling another party what it is that he or she is going to do and involves, at the very least, the giving of information by one party, the response to that information by the other party, and the consideration by the first party of that response.[33] However, he submits that the nature and the object of consultation must be related to the circumstances which call for it.[34] What will amount to ‘consultation’ has about it an inherent flexibility.
[33]Referring to Leichhardt (1992) 78 LGERA 306, 336 (Sheller JA, Priestley JA and Meagher JA agreeing); Port Louis [1965] AC 1111, 1117; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Ltd (2010) 198 IR 382; [2010] FCA 591 [44] (Logan J).
[34]Referring to Port Louis [1965] AC 1111.

The Minster distinguishes Haringey and the other authorities relied on by Tok on the basis that there is no duty to consult in s 20(5) and it is not subject to the rules of procedural fairness for the reason that s 20(4) is not subject to those rules.

The Minister further submits that even if the kind of consultation referred to in Haringey was required under s 20(5), it was satisfied for the following reasons:

(a) The consultation was undertaken at a formative stage of the process, in that, on the day the Minister decided to exercise his discretion to consult under s 20(5), he also signed the letters to the Council, the proponent and the objectors (including Tok), inviting them to consult with him on whether he should exercise his power under s 20(4). The letters were sent the next day.

(b) The Minister provided sufficient detail of what was being proposed to enable those being consulted, including Tok, to properly consider and comment, in that he provided those being consulted, including Tok, with a copy of the proposed Amendment and indicated he was proposing to exercise his power under s 20(4) to exempt the Amendment from the usual notice requirements.

(c) Adequate time was given for consideration and response in the circumstances of the confined nature of the power under s 20(4) and the fact that the Amendment effectively permitted a specific project (to be distinguished from, for example, a scheme amendment that proposed a new strategic direction or new planning controls across a broad area within one or more municipalities). This is particularly so given that the responsible authority had decided to grant a permit in respect of the Project, subject to similar conditions.

(d) The fruits of the consultation were conscientiously taken into account by the Minister in deciding to exercise his power under s 20(4), evidenced by the fact that the Minister was briefed with the responses to the consultation and an assessment of those responses, and he agreed to change the Amendment to take account of those responses.

The Minister submits that any breach of an obligation to consult would not result in the invalidity of the Exemption Decision for the following reasons:

(a) Whether consultation occurs at all, with whom and the manner in which it occurs, is entirely at the Minister’s discretion, and is not a necessary pre-condition to the exercise of power under s 20(4). Any obligation to consult is created by the Minister himself, in determining to undertake consultation. It is the Minister who is to determine the outcome of the consultation, and the fate of the Amendment itself.

(b) The relevant consultation is in respect of the exercise of a discretion that itself operates to prevent scrutiny and does not attract the rules of procedural fairness.

(c) Section 20(5) uses amorphous terminology — ‘may consult with the responsible authority or any other person’ — that does not have a rule-like quality that can be easily identified and applied.

(d) It would be an absurd result if a failure to consult within the meaning of s 20(5) invalidated the exemption, adoption and approval decisions in circumstances where, but for the Minister’s decision to exercise a discretion to consult, no consultation (let alone public notification and scrutiny) was otherwise required.

The second defendant, representing the interests of the developer Vicland, essentially adopted the submissions of the Minister. It submitted, in particular, that what is involved in consultation under s 20(5) is to be determined by reference to the statute, and not by reference to common law notions of fairness. Hence, the authorities referred to by Tok were of limited assistance.

Analysis

Section 20(5) of the Act provides that the Minister, when considering making a decision under s 20(4) to exempt himself from the requirements of ss 17, 18 and 19 of the Act, ‘may consult’ with the responsible authority or any other person before exercising the power in s 20(4).

What is meant by ‘consult’ in s 20(5), and whether the provision imports any particular obligations once a decision is made to consult, is a matter of statutory interpretation. Given the terms and purpose of s 20(4), and the particular relationship between sub-sections (4) and (5), I accept the defendants’ submission that what is meant by ‘consult’ is to be resolved by reference to the statute rather than by reference to any common law duty to act fairly.

The consultation contemplated by s 20(5) is plainly discretionary. The word ‘may’, in the absence of other words affecting its meaning, confers a discretion.[35] The Minister may choose not to consult on an exemption decision and such a decision is not reviewable on procedural fairness grounds. Further, s 20(5) does not prescribe who must be consulted if a decision is made to consult. I reject the proposition that s 20(5) is directed to public participation in a planning scheme amendment and represents an ‘intermediate step’ between full public participation and none. The Minister may choose to consult with a single person or with a number of people. Those people may or may not be members of the public affected by the proposed planning scheme amendment. The Minister may choose to consult only with the responsible authority or with other ministers or government agencies. Section 20(5) makes specific reference to the possibility of consultation with the responsible authority, which makes perfect sense given that the responsible authority is charged with administering the planning scheme. Importantly, and consistently with the statutory conferral of a largely unfettered discretion, the Minister may discontinue consultation at any time and, as a consequence, the nature and extent of the consultation is not reviewable.
[35]Interpretation of Legislation Act 1984, s 45.

I accept the Minister’s submission that Haringey should be distinguished. That case concerned a statutory provision which made consultation a mandatory obligation (‘the authority must … consult’), rather than conferring a discretion to consult as in the present case.[36] Port Louis is distinguishable on the same basis. The statutory provision considered in that case provided that the ‘Governor in Council may by Proclamation alter the boundaries of any town, district or village, after consultation with the local authority concerned’. Such consultation, the Privy Council held, was a mandatory prerequisite to the Governor exercising his powers under that section.[37]
[36]Haringey [2015] 1 All ER 495, [8] (Lord Wilson).
[37]Port Louis [1965] AC 1111, 1124 (Lord Morris).

It follows that I also reject Tok’s submission, based on the RSL Case, that when he invited comments, the Minister assumed ‘the authority to consult’ and thereby became subject to a raft of mandatory requirements, including a duty to act fairly. The RSL Case is distinguishable, having regard to the words in the relevant statutory provision. There, the statute provided that the responsible authority ‘may consider’ certain matters ‘if the circumstances appear to so require’. While it was not necessary for the Court of Appeal to determine the proper construction of the words, Hayne JA expressed the view that ‘may consider’ did not confer a discretion in that context. Rather, if ‘the circumstances appear[ed] to so require’, the responsible authority was bound to consider the matters set out in the sub-section.[38]
[38][1998] 2 VR 406, 413–4 [28]; [1997] VSC 29 (Hayne JA, Brooking and Charles JJA agreeing).

There is no equivalent to the phrase ‘if the circumstances appear to so require’ in s 20(5) of the Act.

Importantly, the consultation referred to in s 20(5) is consultation about the exercise of the power of exemption under s 20(4),[39] not about the merits of the proposed planning scheme amendment. The Minister may consult with ‘any person’ to assist the Minister to decide whether to by-pass the notice requirements for a planning scheme amendment. In this case, the consultation under s 20(5) was as to whether the Amendment should be fast-tracked, that is, whether parties such as Tok should be denied a hearing on the merits of the Amendment in accordance with the process otherwise set out in pt 3 of the Act.
[39]And s 20(2).

I accept that while the consultation under s 20(5) is not consultation about the merits of the proposed amendment, it would be artificial to entirely divorce the exemption decision from the amendment that is being considered for fast-tracking. The nature and extent of the proposed amendment will in many cases be relevant to the exemption decision, but consultation undertaken pursuant to s 20(5) will not be specifically directed to the merits of the proposed amendment. In particular, the consultation undertaken under s 20(5) is not envisaged — let alone required — to be an exercise involving the hearing of competing expert evidence on the planning merits of the proposed amendment. That would defeat the purpose of s 20(4). As the exercise of power under s 20(4) to gain exemption from the requirements in ss 21, 22 and 23 of the Act is not subject to the requirements of natural justice,[40] it would be anomalous if a decision to consult under s 20(5) gave rise to a need to afford procedural fairness to persons affected by the decision under s 20(4).
[40]See for eg, Grollo [1993] 1 VR 627, 637–8 (Brooking J); East Melbourne Group Inc v Minister for Planning (2005) 12 VR 448, 472 [71], 473–4 [73] (Morris J).

I also reject Tok’s submission that its legislative history indicates that s 20(5) should be construed as obliging the Minister to engage in a particular form of consultation.

The Planning and Environment (Amendment) Act 1993 (‘Amending Act’) amended s 20 to its present form. Prior to the amendments, s 20(4) required the Minister to consult with the affected local council before exercising the power of exemption. However, s 20(5) enabled the Minister to exercise the s 20(4) power ‘without consultation with the responsible authority if, in the special circumstances of the case, consultation [was] not reasonably practicable’.

In the second reading speech for the Bill, the then Minister for Planning said:

The clause also takes the opportunity to overcome the somewhat anomalous situation that before exempting an amendment from the need to give notice to all owners and occupiers affected by the amendment the Minister must consult the responsible authority. In the case of a State amendment that involves consulting all councils in Victoria just to decide whether to exempt the amendment from an impossible notice requirement. The changes proposed by the Bill will allow other notice to be given in those cases without delay, and councils can comment on the amendment.[41]

[41]Victoria, Parliamentary Debates, Legislative Assembly, 20 April 1992, 1128 (Mr McCutcheon, Minister for Planning).

Tok submits that this explanation shows that in enacting the Amending Act, the legislature intended that, although the Minister would no longer be bound to consult with the responsible authority and/or other affected individuals before exercising the powers under ss 20(2) and (4), the Minister could, in appropriate cases, elect to do so. Tok submits that where that election is made, the process of consultation that follows is obviously intended to be a substantive and meaningful one.

The Minister submits, and I accept, that the changes made by the Amending Act were intended to facilitate the exercise of the exemption power in s 20(4). The removal of the obligation of consultation between the Minister and the responsible authority ‘lowered the bar’ set by s 20(4) for the lawful exercise of discretion by the Minister. There is no basis for inferring that the Amending Act then imported any particular requirements pertaining to the standard or content of consultation undertaken under s 20(5).

I am satisfied that the consultation carried out by the Minister was consistent with the spirit and the letter of s 20(5). There was no failure to sufficiently or ‘truly’ consult in relation to the Exemption Decision. The Project was recommended by an expert body for fast-tracking in order to provide urgent economic stimulus. Allowing the VCAT process to run its course involved delay and might ultimately have prevented the Project from going ahead at all. The power conferred on the Minister by s 20(4) to shorten the amendment process by exempting himself from the notice requirements could be exercised if the Minister formed the view that either notice was not warranted or that it was in the interests of Victoria to make such an exemption. Both of these conclusions were open to him.

It was open to the Minister to consider that compliance with the notice requirements was ‘not warranted’ on the basis that the Incorporated Document largely reproduced the permit conditions in the NOD and the views of the Council, the development proponent and the objectors were already known. The Project had gone through the Council’s extensive decision-making process, an application for review of the Council’s decision had been commenced at VCAT, and it had advanced to the stage of a compulsory conference. The objectors had had considerable time in which to form and articulate their objections to the Project, and had done so. The Minister was made aware of the nature of the objections.

It was also open to the Minister to form the view that it was in the interests of Victoria for the construction of the Project to proceed without a protracted process of consultation and/or review, given the immediate need to stimulate the economy through the creation of design and construction jobs, and the fact that the Project had been carefully considered and ‘green-lighted’ by the Taskforce.

Such were the circumstances in which the Minister notified Tok, as the principal objector to the Project, and others, that he was considering making the Exemption Decision in order to fast-track the Amendment. Although the Minister’s letter to Tok stated that he would appreciate comments about the Amendment itself, it was clear that the Minister was consulting under s 20(5), which was consultation directed to the exercise of his power under s 20(4).

Tok responded to the Minister’s invitation by submitting that it had not been given enough time to comment. However, it took the opportunity to inform the Minister of its view that the Project was affected by fundamental problems and that Tok was supported in this view by the (named) experts it had retained in the relevant fields for the VCAT proceeding. Tok submitted that no reasonable or sufficiently informed decision on the planning merits ‘of the course foreshadowed’ (which I take to be the Amendment and the Project) could be made without a hearing that would ‘expose the fundamental problems associated with this application’.

In other words, Tok brought to the Minister’s attention its view that there needed to be a hearing at which the expert opinions about the Project’s urban design flaws and the traffic and parking problems it would generate would be ventilated and the merits of the Project would be tested.

This view — that there needed to be a hearing involving the presentation of expert evidence to expose problems with the Project — was relevant to the Minister’s consideration of whether he should make the Exemption Decision. However, it was open to him to reject the call for a hearing and to make the Exemption Decision without hearing further from Tok (or its experts) about the planning merits of the Project.

It follows from my analysis of the requirements attending any consultation undertaken under s 20(5) that I also reject Tok’s submission that the consultation was deficient because Tok had no access to the materials relied on by the Minister in deciding to adopt the Amendment.

Having regard to the limited purpose of any consultation under s 20(5) and the fact that Tok was already well apprised of the Project proposal — and therefore of the Amendment — five business days was sufficient time for Tok to prepare its comments on whether notice of the Amendment should be dispensed with. Tok needed only to foreshadow (alleged) problems with the Project in order to persuade the Minister that third party consultation was required on the merits of the Amendment/Project. Tok did not need to — and was not entitled to — fully expose those problems before the Exemption Decision was made.

In its Amended Originating Motion and in oral submissions, Tok stepped back from the call it made in its written response to the Minister that there should be a hearing on the merits of the Project involving the presentation of expert evidence. Tok now seems to suggest that it would have been sufficient to allow Tok to provide its expert reports to the Minister for his consideration. In its written response, Tok had told the Minister that those reports were not yet ready.

The Minister made the Exemption Decision having taken into account Tok’s written response demanding a hearing on the merits of the Project, and more time to prepare its expert reports. The more modest submission now made presupposes that the Minister should have entered into dialogue with Tok as to how to hear ‘both sides of the debate’ on the merits of the Project, which in turn presupposes that consideration of the merits of the Project was necessary or appropriate in the circumstances. For the reasons I have given, it was open to the Minister to make the Exemption Decision without digging deeply into objector concerns about the merits of the Project.

It is apparent from the Amendment C306 Brief that the responses from the persons from whom comments were requested were taken into account by the Minister. The Minister was informed of the issues raised by Tok. Furthermore, some of the finer details of the Amendment were modified as a consequence of the parties informing the Minister about their agreement that the Project plans be amended to deal with certain objector concerns. There is no evidence that the consultation was a sham. The steps under ss 20(4) and (5) were undertaken by the Minister in an orderly fashion and he had regard to the outcome of the consultation.

If I am wrong, and the Minister failed to satisfy an obligation to consult in accordance s 20(5) of the Act, this does not invalidate the Exemption Decision.

It is well established that whether an act done in breach of a statutory requirement is invalid is a question of legislative purpose, having regard to the language of the relevant provision and the scope and object of the statute as a whole.[42] Indicia that may be relevant in that context include: (1) whether the statutory requirement merely regulates the exercise of a function already conferred on the decision maker, or whether it is an ‘essential preliminary’ to the exercise of a function; (2) the nature of the requirement, and, in particular, whether it has a ‘rule-like quality’ that can easily be identified and applied; (3) any public inconvenience that might result if non-compliance renders the decision invalid; (4) whether there are any other means of giving effect to the relevant requirement, other than by invalidating a decision that does not comply with that requirement; and (5) the extent and consequences of the non-compliance in the particular case.
[42]Project Blue Sky (1998) 194 CLR 355, 390–1 [93]; [1998] HCA 28 (McHugh, Gummow, Kirby and Hayne JJ).

In this case, there are a number of clear indications that the legislature did not intend that a failure to comply with any requirements of s 20(5) would invalidate a decision under s 20(4). The language in s 20(5) does not have a rule-like quality. It is the language of a relatively unfettered discretion. There is no language rendering ‘may’ as ‘must’, such as existed in the RSL Case. Importantly, consultation is not a statutory precondition to the exercise of power under s 20(4). The Minister does not need to consider whether to consult before exercising the power in s 20(4), let alone carry out a consultation of any particular type or intensity. Any consultation that the Minister chooses to undertake is in aid of the exercise of a discretion that is intended to remove a planning scheme amendment from scrutiny and does not attract the rules of procedural fairness.

Moreover, s 20(4) contains its own requirements for the exercise of the power to exempt, namely, that the Minister considers that compliance with the notice requirements is not warranted or that he or she considers that the interests of Victoria make such an exemption appropriate.

In these circumstances, there is nothing to suggest that the legislature intended that a failure to consult, or to consult sufficiently or adequately, should give rise to an invalid exemption decision.

Ground 1 is not made out.

Ground 2

Ground 2 is that, insofar as cl 45.12-2 of the Planning Scheme and cl 7.0 of the Incorporated Document purport to give the Council power to extend the time for the commencement (or completion) of the Project after the expiry of the Incorporated Document, the relevant parts of the clauses (collectively, the ‘extension clauses’) are unlawful and must be severed from the Planning Scheme.

Tok further contends that the Amendment is legally unreasonable, logically fallacious and/or not reasonably proportionate to its purpose (to expedite a ‘shovel ready’ project to provide urgent economic stimulation and job creation in response to the coronavirus pandemic) in that it:

(a) applied the SC Overlay to the Project, which by cl 45.12-2 gives the Council the power to extend the time for commencement of the development beyond one year after the approval of the Amendment; and

(b) provided in cl 7.0 of the Incorporated Document that the Council may extend the time for commencement of the development beyond one year after the gazettal of the Amendment.

Thus, while Ground 2 generally concerns the power in the Planning Scheme to extend time for the commencement and/or completion of the Project, Tok advances two quite different challenges arising from the existence of the extension clauses:

(a) first, to the validity of those parts of the extension clauses that purport to give the Council power to extend time after the Incorporated Document has expired. This challenge is based on the proposition that the extension clauses are not capable of conferring on the Council what is essentially a power to amend the Planning Scheme by acceding to a request to re-enliven the Incorporated Document after it has expired; and

(b) secondly, to the validity of the Amendment based on it not being fit for purpose because the extension clauses allow the commencement of the Project to be delayed.

It is convenient to begin with the second aspect of Ground 2.

Tok’s submissions on ground 2(b)

Tok submits that there is a fundamental problem with the Amendment insofar as it purports to give the responsible authority power to extend time to commence development (whether on request prior to the expiry of the control or after its expiry). Tok argues that the existence of this power is directly contrary to the express justification for the Amendment, which was to expedite a ‘shovel ready’ project to urgently stimulate the economy in the face of the COVID-19 pandemic. The Minister determined that the Project required urgent approval so as to provide immediate, prompt and urgent economic stimulus in response to the pandemic. However, the Amendment does not, and cannot, ensure that this will occur.

Specifically, Tok submits that as the SC Overlay allows the responsible authority to extend the commencement time for the development for whatever period it deems fit, the chosen tool (the SC Overlay) is not able to guarantee the outcome that represents the entire justification for its use. The effect of cl 45.12-2 is that the power to determine when the development can be commenced has been delegated to the responsible authority. The control does not impose any constraints on the exercise of that power or require it to be exercised in a manner that would ensure the urgent delivery of the project.

As a result, so Tok says, the Minister has chosen the wrong mechanism to achieve the result he claims is necessary —the urgent delivery of a shovel ready project. The Amendment is legally unreasonable (arbitrary or capricious), logically fallacious and/or not reasonably proportionate to the purpose of the Amendment. It is therefore beyond the power conferred by s 35 of the Act.

Defendants’ submissions on ground 2(b)

The defendants submit, in substance, that Tok’s contention that the existence of the power to extend time is directly contrary to the express justification for the Amendment — urgency — and that the SC Overlay was the wrong tool to guarantee an urgent outcome, is misconceived. Tok has conflated the Exemption Decision and the decision to prepare, adopt and approve the Amendment, and the question of urgency arises only in relation to the power of exemption. Urgency is relevant to the jurisdictional facts relied upon to exercise the power in s 20(4). If it were the case that s 20(4) was not relied upon to make the Amendment and the Amendment was processed in the usual way, that is, through the public notification process before adoption and approval, there would be no issue with urgency at all, because there is no statutory precondition for the preparation, adoption or approval of an amendment requiring the existence of urgency.

The Minister submits that, in any event, he did facilitate an urgent outcome in this case:

(a) by making the Exemption Decision, and the decisions to prepare, adopt and approve the Amendment in August 2020, rather than allowing the VCAT hearing to occur in September 2020, with a decision likely to be made some six weeks after that hearing, the outcome of which could not be known in advance; and

(b) by reducing the time for commencement of the Project from two years (under the SC Overlay) to one year (under the Incorporated Document).

The Minister submits that there is no control or mechanism within the planning system that ‘guarantees’ an urgent outcome. Alternative planning controls available to the Minister in the circumstances included the Incorporated Document Overlay[43] or the Development Plan Overlay,[44] but neither control contains an expiry provision. Clause 51.01, titled ‘Specific sites and inclusions’, provides for the inclusion of specific land within a schedule to that clause in a manner similar to the SC Overlay. It does contain expiry provisions, but they are identical to those in the SC Overlay. Further, had the Minister ‘called in’ the proceeding from the Tribunal using his powers under cl 58 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998, any permit granted by the Governor in Council would have been subject to s 69 of the Act, which similarly allows for an extension of time to commence development within six months after the expiry of a permit.
[43]Under cl 43.03.
[44]Under cl 43.04.

The Minister submits that as he did not amend the Planning Scheme to make himself the responsible authority, and so did not retain for himself any control over endorsement of plans in accordance with the conditions in the Incorporated Document, it was proper to give the Council the discretion to extend time. Further, it should not be presumed that the Council would exercise the discretion to extend time under the Incorporated Document automatically; it would do so by reference to considerations well established as being potentially relevant and having regard to the material put forward by an applicant for extension as to why the extension should be granted.

Analysis: ground 2(b)

In my view, this ground has no merit. While the Amendment does not guarantee the urgent development of the Project, it quite clearly facilitates it.

It is entirely orthodox for planning permissions to make provision to extend time for the commencement and/or completion of developments. As senior counsel for the second defendant pointed out, there is ordinarily a lot to be done between the grant of a permit and the commencement of the development (such as architectural and design work to permit the endorsement of plans complying with permit conditions, and so on). There are many things beyond the immediate control of the developer that might delay the commencement of a development. The absence of a power to extend time would result in the need to recommence the permit process, with attendant, much more significant, delays. In this case, absent the extension clauses, a delay in commencing the construction of the Project would require another Planning Scheme amendment.

Moreover, as the Minister pointed out, while the construction and completion of the Project creates employment, the pre-construction phase is also labour intensive. Therefore, even if there was an extension to the commencement date for the Project, work done as part of the pre-construction phase would still achieve the Minister’s goal of economic stimulation.

As discussed, there is no allegation that the Amendment was made for an improper purpose. Tok accepts that the Amendment was made for the reason articulated.

In my view, the inclusion in the Amendment of a mechanism allowing for the extension of time to commence the Project was not unreasonable, and certainly not so unreasonable that no reasonable person would have made such provision in the circumstances. The provision of a mechanism to permit the extension of time was not disproportionate having regard to the purpose of the Amendment and nor was the Amendment ‘logically fallacious’ as a consequence of including such a mechanism.

Furthermore, I accept the defendants’ submission that the question of urgency arises in the context of the Exemption Decision. The question of urgency goes to whether the Minister could form the view that it was in the interests of Victoria to make an exemption from the requirements of ss 17, 18 and 19 of the Act in respect of the Amendment.

Moreover, the Amended Originating Motion does not attack the Amendment directly. The Amendment is said to be void and of no effect as a result of the failure to consult about the Exemption Decision. That is, the Amendment must fall because the Exemption Decision was not properly made. The direct attack which is now made on the Amendment based on it manifesting a lack of urgency is not supported by the pleading.

In all of the circumstances, ground 2(b) must fail.

Tok’s submissions on ground 2(a)

Tok seeks the following relief in relation to the extension clauses:

8.A declaration that cl 45.12-2 of the Scheme, to the extent it purports to empower a responsible authority to extend the time for the commencement or completion of a development permitted by a specific control after the expiry of that control, is void and of no effect.
9.A declaration that cl 7.0 of the Incorporated Document, to the extent it purports to empower the responsible authority to extend the time for the commencement or completion of the development permitted by the Incorporated Document, is void and of no effect.

Tok submits that ‘expire’ under cl 45.12-2 of the Planning Scheme and cl 7 of the Incorporated Document means to ‘terminate’ or ‘come to an end’, so that upon expiry the relevant control ceases to exist. In this respect, it relies on s 12 of the Interpretation of Legislation Act 1984, titled ‘Time of expiry of temporary Acts’, which provides that:

Where an Act or a provision of an Act is expressed to expire, lapse or otherwise cease to have effect on a particular day, or to remain or continue in force until a particular day, the Act or provision shall continue in operation until the last moment of that day.

Tok submits that insofar as the power in cl 45.12-2 purports to give the responsible authority the power to ‘revive’ (or remake) a control that has expired, the power is manifestly unlawful. Because the control has ceased to exist, what is involved in the extension of time after its expiry is, in effect, the amendment of the Planning Scheme. However, only the Minister has the power to approve an amendment to the planning scheme and amendments may only be made in accordance with the process set out in the Act.

Clause 7.0 of the Incorporated Document also allows the responsible authority to extend time for commencement or completion, and does so for up to six months after the Incorporated Document has expired. Tok submits that this aspect of the Incorporated Document is also unlawful because, again, it purports to give the responsible authority the power to revive or remake a part of the Planning Scheme.

Tok submits that s 6(5) of the Act, which provides that a provision of a planning scheme may operate for a specified period, means that it is permissible for cl 45.12-2 to provide that specific controls operate for a specified period, but the specified period must be identifiable. A period left to the discretion of the responsible authority is not a specified period. An unspecified period of extension is therefore not something that can be included in the planning scheme.

Tok submits that the power to extend the time to commence (or complete) the Project after the expiry of the Incorporated Document must be severed from the extension clauses. In the context of an attack on an invalid condition or part of a development permit, the question is ‘whether the nature of the development is changed by severing the condition. If the answer is that it is not, but that only the extent of the development or the period during which it may be carried out is affected, then it may be severed’.[45] In this case, Tok submits, the power to extend time after expiry of the control could be struck out without fundamentally altering the character of the SC Overlay (or the Amendment).

Defendants’ submissions on ground 2(a)

[45]Referring to Corporation of the City of Adelaide v City of Salisbury (1998) 100 LGERA 160, 170 [32] (Bleby J); Gantley Pty Ltd v Phoenix International Group Pty Ltd [2010] VSC 106, [106] (Vickery J).

The Minister submits that provision for the extension of the controls in the Incorporated Document by the responsible authority and after its expiry is valid. He submits, in substance, that the Act must be construed as conferring on a planning authority wide powers to make planning scheme provisions, including as to how long a planning scheme provision should operate for.

The Minister points to the objectives of the planning framework of the Act, which include to facilitate development which achieves the objectives of planning in Victoria (s 4(2)(e)) and to encourage the achievement of planning objectives through positive actions by responsible authorities and planning authorities (s 4(2)(g)). Section 6(1) requires a planning scheme to further the objectives of planning in Victoria and provides that a planning scheme may make ‘any provision which relates to the use, development, protection, or conservation’ of any land in the area covered by the scheme. Relevantly, s 6(2)(h) provides that a planning scheme may require specified things to be done to the satisfaction of a responsible authority and s 6(2)(j) allows the incorporation of any document that relates to the use, development or protection of land.

The Minister advances a different interpretation of s 6(5) of the Act than Tok. He submits that it allows for the specification of time periods for the operation of a planning scheme provision or for no time periods to be specified and it thereby empowers the planning authority to regulate the expiry of controls as it sees fit. A planning authority has a much broader power to regulate the expiry of controls than does the responsible authority under the permit provisions of the Act. The Minister submits that there is no reason to read down that broad authority so as to prohibit the making of a planning scheme control that allows for the extension of an expiry date.

Moreover, the Minister submits, the way in which the term ‘expiry’ is used in cl 45.12-2 makes it plain that the expiry date is not necessarily a single point in time. The reference to the use and development of the land occurring only in accordance with the provisions of the planning scheme ‘upon expiry of the specific control’ takes into account that the control may have already ‘expired’ and been extended.

The Minister submits that the extension clauses relevantly mirror s 69 of the Act, in that they allow for an extension of the permission to develop land within a certain period after that permission has first expired. The concept of ‘expiry’ in s 69 of the Act must be interpreted in the context of the ability to extend the time for expiry after the expiry date. The expiry date is nominal, and the permit or control only finally or permanently expires after the extension period has passed. So much is confirmed by s 69(3), which provides that ‘if the time is extended after the permit has expired the extension operates from the day the permit expired’. ‘Expired’ for the purposes of s 69(3) cannot mean ‘ceased to exist’ or else that provision would be nonsensical.

According to the Minister, there is no reason to suppose the concept of ‘expiry’ (and the word ‘expired’) is used in any different sense in the SC Overlay or Incorporated Document. So understood, it is wrong to suggest that the extension clauses purport to give the responsible authority the power to ‘revive’ (or remake) a control which has ceased to exist. The permission only ceases to exist at the end of the extension period.

Finally, the Minister submits that as the Act authorises a planning scheme to require specified things to be done to the satisfaction of the responsible authority (among others), an alternative way of expressing the effect of the extension clauses is that development must not be carried out outside the time specified without the consent of the responsible authority. This extension of time is clearly within power, in that the Planning Scheme itself authorises the responsible authority to extend time by way of secondary consent.

In oral argument, the second defendant submitted that ground 2(a) was flawed in that Tok had misunderstood what ‘expires’ under cl 45.12-2. The clause refers to the expiry of a ‘control’. A control is located within the relevant incorporated document. It would therefore be incorrect to argue that a responsible authority cannot be given the power to ‘revive’ an incorporated document after it has ceased to exist: what will have expired is not the incorporated document, but rather the specific control contained within it. Expiry of the specific control may mean that the incorporated document no longer authorises a particular development, but the incorporated document will nevertheless continue to exist as part of the planning scheme.

The second defendant also submits that the extension provisions are consistent with the framework of the Act and the Planning Scheme, such that it is not ‘unlawful’ for a responsible authority to extend the time for commencing or completing a development in accordance with those provisions.

Analysis: ground 2(a)

Clause 45.12 of the Planning Scheme provides for the application of specific controls designed to achieve a particular land use and development outcome in extraordinary circumstances. Clause 45.12-1 provides that land affected by the SC Overlay ‘may be used or developed in accordance with a specific control contained in the incorporated document corresponding to the notation on the planning scheme map’, in this case, with specific controls set out in the Incorporated Document. Clause 45.12-2 then provides for ‘specific control contained in the incorporated document’ to ‘expire’ in certain circumstances.

While cl 45.12 distinguishes between the Incorporated Document and the specific controls that it contains, and provides for the expiry of the specific control(s) to rather than the Incorporated Document, the Incorporated Document refers to its own expiry:

This Incorporated Document will expire if one of the following circumstances applies:
The development is not started within one year of the date of the gazettal of amendment C306ston.

In fact, a document cannot ‘expire’, but the permission(s) to develop and use land that are conferred by the planning scheme and contained in the incorporated document can. In my view, the fact that the Incorporated Document refers to its own expiry is a function of poor drafting or loose language. What expires is the permission to develop the Project in accordance with the controls in the Incorporated Document. The Planning Scheme controls that would apply in the absence of the controls in the Incorporated Document then govern the development and use of the Project land.

Both the Planning Scheme provision (cl 45.12) and the document incorporated into the Planning Scheme by that provision (the Incorporated Document) provide for the ‘expiry’ of the permission to develop the land pursuant to the SC Overlay if the permission is not acted upon within specified timeframes. They also provide for those timeframes to be extended by the Council upon request.

I accept the Minister’s submission that the Act contains a broad authority for a planning authority to determine if and when a control will cease to operate. This is consistent with the power to make planning schemes to satisfy the objectives of planning in Victoria. Provisions in planning schemes regulating the expiry of permission for the use and development of land promote orderly development, and facilitate development, by preventing the permission from lying dormant for a protracted period. Likewise, a provision that authorises the extension of an expiry date promotes orderly development, and facilitates development, by enabling an owner or occupier of land to preserve a permission in respect of that land in the event that development has not been able to commence or be completed before the expiry date, for any number of reasons that may arise. The planning authority has broad powers to prepare a control that contains an expiry provision like the one in question.

Furthermore, while the ordinary meaning of the word ‘expire’ is to ‘come to an end’ or ‘die’, the term is used differently in the Act. In the absence of a clear intention to the contrary, the term ‘expire’ in a planning scheme should be construed consistently with the legislation pursuant to which the planning scheme is made.[46]
[46]Interpretation of Legislation Act 1984, s 23; see also Birch v Allen (1942) 65 CLR 621.

There is clear authority for a planning permit to be extended after its expiry and the term ‘expire’ in the controls forming part of a planning scheme must be understood in that context. Section 68 of the Act sets out the circumstances in which a permit for the development and/or use of land will ‘expire’, while s 69(1) provides:

Before the permit expires or within 6 months afterwards, the owner or the occupier of the land to which it applies, or another person with the written consent of the owner, may ask the responsible authority for an extension of time.

Section 69(3) then provides:

If the time is extended after the permit has expired the extension operates from the day the permit expired.

In other words, if an extension of time is granted after expiry, it is as though the permission remained in force. The permit did not cease to exist.

In Harvey v Mutsaers,[47] the Court of Appeal (Nettle, Redlich and Hansen JJA) held that the Tribunal had power to extend the operation of an ‘expired’ permit even after the three month period of grace after the first point of expiry, as Parliament had conferred that jurisdiction on the Tribunal in clear terms under cl 62 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998.[48] The Court approved the decision of Balford J in Rumpf v Mornington Peninsula Shire Council,[49] and observed that since Rumpf, the Tribunal had consistently held that a permit does not ‘irrevocably expire without the prospect of resuscitation after the three month grace period in s 69(1)’.[50]
[47](2012) 35 VR 389; [2012] VSCA 69.
[48]Ibid 396 [24].
[49](2000) 2 VR 69; [2000] VSC 311 (‘Rumf’).
[50]Harvey v Mutsaers (2012) 35 VR 389, 398 [28]; [2012] VSCA 69.

In the context of the permit provisions of the Act, therefore, ‘expired’ does not mean irrevocably expire or die. ‘Expire’ in cl 45.12-2 of the Planning Permit and cl 7.0 of the Incorporated Document should be understood in the same way. In those clauses, the responsible authority has been given the authority to extend an ‘expired’ permission to develop land. The SC Overlay confers on the responsible authority a power to extend time for compliance with the requirements of the controls contained in the Incorporated Document. It also envisages that the Incorporated Document may vary the time periods stipulated.

As to Tok’s reliance on s 12 of the Interpretation of Legislation Act, the Planning Scheme is a subordinate instrument, not a temporary Act. The relevant provision of the Interpretation of Legislation Act dealing with subordinate legislation is s 25, which provides:

Where a subordinate instrument or a provision of a subordinate instrument is expressed to expire, lapse or otherwise cease to have effect on a particular day, or to remain or continue in force until a particular day, the subordinate instrument or provision shall continue in operation until the last moment of that day.

Section 25 (titled ‘Time of expiry of temporary subordinate instruments’) is clearly concerned with the point in time at which a subordinate instrument expires. It is akin to a ‘counting’ provision. It does not elucidate the meaning of ‘expire’, much less confer the meaning that Tok argues the term should have.

In my view, the extension clauses are not invalid for the reasons advanced by Tok.

Ground 2(a) is not made out.

Disposition

None of the grounds for review have been made out.

The proceeding will be dismissed.

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6 August 2021