W Everton Park Pty Ltd v Minister for Planning

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0104

W EVERTON PARK PTY LTD (ACN 067 891 829) & ORS (ACCORDING TO THE ATTACHED SCHEDULE)	Applicants
v
MINISTER FOR PLANNING	Respondent

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JUDGES:	EMERTON P, WALKER JA and QUIGLEY AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	15 June 2022
DATE OF JUDGMENT:	8 November 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 243
JUDGMENT APPEALED FROM:	[2021] VSC 465 (Richards J)

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PLANNING AND ENVIRONMENT – Ambulatory titles affecting land within Public Conservation and Recreation Zone – Minister’s decision to amend Victoria Planning Provisions and all Victorian planning schemes governing land within Public Conservation and Recreation Zone – Minister’s decision for exemption under s 20(4) of Planning and Environment Act 1987 – Whether judge erred in finding Minister did not act for improper purpose – Whether judge erred in finding consent requirement repugnant to Planning and Environment Act 1987 – Leave to appeal granted – Appeal dismissed.

Planning and Environment Act 1987, ss 6, 47, 48, 149.

Shire of Sherbrooke v Aitken [1981] VR 873; Shire of Sherbrooke v F L Byrne Pty Ltd [1987] VR 353, distinguished.

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Counsel
Applicants:		Mr S Morris KC with Mr R Chaile
Respondent:		Mr C J Horan KC with Ms E Smith
Solicitors
Applicants:	Rigby Cooke Lawyers
Respondent:	Victorian Government Solicitor

EMERTON P
WALKER JA
QUIGLEY AJA:

Introduction

The applicants are the owners of two parcels of adjoining land which front Port Phillip Bay at the Point King Beach foreshore in Portsea, Victoria (‘Fox land’). They brought proceedings in the Trial Division seeking declarations concerning the validity of a planning scheme amendment made in 2014 affecting the Fox land.
On 5 and 16 August 2021, the primary judge made orders dismissing the proceeding and published reasons for her decision.[1] The applicants now seek leave to appeal from that decision. For the reasons that follow, we would grant leave to appeal but dismiss the appeal.
[1]W Everton Park Pty Ltd v Minister for Planning [2021] VSC 465 (‘Reasons’).

Factual background

The titles to the Fox land

The original Crown grants made in 1872 described the beach boundary of the Fox land by reference to ‘the margin of Port Phillip Bay’. As a result, the beach boundary of the Fox land is ambulatory — that is, it moves with the natural movement of the mean highwater mark over time. The titles to the Fox land are among a small number of titles across Victoria with boundaries to the high water mark that were established before the reservation of coastal land for public purposes in the late 1800s.
On 29 September 2011, the applicants applied to the Registrar of Titles under s 103(2)(a) of the Transfer of Land Act 1958 to have the beachside boundary of the Fox land corrected in the Register. Some two years later, on 23 December 2013, the Registrar declared himself satisfied that the doctrine of accretion applied to extend the Fox land and he exercised his power to change the title boundaries of the Fox land as recorded on the Register so that the title boundaries reflected the high water mark as at 9 October 2009. This formally extended the Fox land by approximately 50 metres to the north east and onto the Point King Beach.
The Fox land titles are unusual in Victoria, where 96 per cent of coastal land is in public ownership.
The correction to the Register did not affect the zoning of the Fox land under the Mornington Peninsula Planning Scheme (‘Planning Scheme’). The land newly shown in the Register as part of the Fox land (‘beach land’) remained (and remains) within the Public Conservation and Resource Zone (‘PCRZ’). The balance of the Fox land is zoned General Residential.
The PCRZ is one of a number of zones in the Victoria Planning Provisions (‘VPPs’) described as ‘Public Land Zones’. The PCRZ covers Port Phillip Bay and most coastal areas in Victoria, including the Point King Beach. Its purposes include the protection and conservation of the natural environment and natural processes for their historic, scientific, landscape, habitat or cultural values; and the provision of facilities which assist in public education and interpretation of the natural environment with minimal degradation of the natural environment or natural processes. Land zoned PCRZ is commonly managed by a ‘public land manager’.

Amendment of the planning scheme

On or about 4 February 2014, the respondent (‘Planning Minister’ or simply ‘Minister’ as the context requires) met with the Minister for Energy and Climate Change (‘Climate Minister’) to discuss the ambulatory titles and issues arising from the Registrar’s decision with respect to the Fox land.
On 21 February 2014, the Climate Minister wrote to the Planning Minister requesting advice on appropriate planning controls regarding use and development along Point King Beach and other beaches with property boundaries to the high water mark of Port Phillip Bay. That letter stated that, while public access along the Point King Beach would continue via a six metre easement across the Fox land, ‘should a new boundary fence be erected or other development undertaken, there [would] be significant detrimental effects to the public’s enjoyment of the area’. The letter also recorded that
[o]ver the last 120 years, the broad policy intent in Victoria has been to facilitate public access to beaches and the coast. This has been expressed in the last four Victorian Coastal Strategies, which have clearly and consistently articulated successive governments’ policy for long term coastal planning and management.
On or about 24 February 2014, the then Department of Transport, Planning and Local Infrastructure (‘Department’) prepared a brief to the Planning Minister concerning the ambulatory titles on Point King Beach. The brief:
(a)noted the recent adjustment to the titles of the Fox land meant it was in two planning zones, including the PCRZ;
(b)recommended that the Planning Minister consider an amendment to the PCRZ to require planning permits for all buildings or works on all land in the PCRZ where there is no public land manager; and
(c)sought more detailed advice regarding potential legislative or regulatory reform to protect access to the beach where ambulatory titles existed.
On 7 March 2014, the Planning Minister accepted a recommendation to prepare an amendment to the Victoria Planning Provisions (‘VPPs’) to facilitate the proposed changes to the provisions governing land in the PCRZ. A further brief was prepared on or about 24 March 2014 attaching a draft planning scheme amendment — Amendment VC115 — and recommending that:
(a)the Planning Minister exempt himself under s 20(4) of the Planning and Environment Act 1987 (‘Planning Act’) from the requirements of ss 17, 18 and 19 of that Act and the Regulations in relation to draft Amendment VC115; and
(b)the Planning Minister prepare, adopt and approve Amendment VC115 to the VPPs and planning schemes detailed in the brief, including the Planning Scheme.
The Planning Minister signed the brief and requested that specified changes be made to Amendment VC115 in respect of cl 36.03–2, so that a planning permit would be required for uses listed in cl 62.01 of the Planning Scheme, as well as for buildings and works listed in cl 62.02.
On 28 March 2014, the Planning Minister made two decisions:
(a)a decision by which he exempted himself under s 20(4) of the Planning Act from the notification requirements of ss 17, 18 and 19 of the Planning Act in relation to Amendment VC115 (‘Exemption Decision’); and
(b)a decision made pursuant to s 4C of the Planning Act to approve Amendment VC115 (‘Amendment Decision’).
On the same day, the Planning Minister signed a letter to the Climate Minister advising that he had recently approved Amendment VC115, and stating that the recent title changes and advice regarding further properties with similar ambulatory titles raised a range of issues relating to the use and development of private land within the PCRZ. These issues included:
(a)the provision of appropriate notification and consent processes under the PCRZ;
(b)ensuring appropriate consideration of the impacts on adjacent Crown land of all use and development under any PCRZ application; and
(c)the appropriateness of maintaining the PCRZ for similarly titled properties.
On 4 April 2014, Amendment VC115 was gazetted. It amended every planning scheme in Victoria, including the Planning Scheme, so that certain proposals to use and develop land within the PCRZ would require a planning permit. It also imposed a requirement that, where there is no public land manager for land within the PCRZ, an application for a permit must be accompanied by the written consent of the Secretary to the Department of Environment and Primary Industries (now the Secretary to the Department of Environment, Land, Water and Planning) (‘Secretary’).

Statements by the Minister for Planning

On 4 April 2014, the date on which Amendment VC115 was gazetted, the Minister issued a media release titled ‘Beaches to be protected from private development’ (‘April media release’). The terms of the April media release are set out in greater detail at paragraphs 68 to 70 below. The April media release concluded with the statement that the change to the PCRZ ‘will ensure proper management of beaches, it will prevent inappropriate development and construction from occurring. Beaches will remain accessible for everyone in this state — as they should be’.
In addition, various media articles published between February and April 2014 reported that the Planning Minister had made a number of public statements concerning the change to the title boundaries of the Fox land and Amendment VC115. These statements reportedly included the following:
(a)statements in ‘The Sydney Morning Herald’ reported on 16 February 2014 that:
(i)‘[a]nyone with this kind of older title is likely to [want the same deal] and we cannot have the situation where we lose hundreds of square metres of public beach’;
(ii)that the Titles Office had ‘questions to answer’ and that Ministers of the Crown had issued a ‘please explain’ to the Titles Office;
(b)statements in ‘The Canberra Times’ reported on 20 February 2014 that:
(i)‘[t]he government needs to intervene and clarify those titles. The changes might say the high-water mark at the time of purchase or at a particular time ... We are not going to subject the people of Victoria to a loss of beach access simply because of a 1900s definition’;
(ii)‘[m]y office and the department are kept up to date by the Titles Office of issues that they have coming to them. However, being advised of any specific land title decision is not something that I have been involved in in the past nor any other minister has been involved in’;
(c)statements reported by the Australian Broadcasting Corporation on 17 February 2014 that:
(i)‘[i]t’s clearly something the Government is not happy about’;
(ii)‘[w]e don't want to see public beach lost in private hands, that’s not what is done in Victoria, and we don't want to see that precedent beginning’;
(d)statements in ‘The Age’ reported on 4 April 2014, following the approval of Amendment VC115, that:
(i)‘[t]he Victorian government will not allow public-accessed beaches to be built on where the land is technically held in private ownership’;
(ii)‘[p]ublic conservation and resource zones will now be safe from private development’; and
(iii)‘[t]his is an appropriate planning response while the government works on the complex legal process of resolving the issue involving defining a boundary such as the high water mark’.[2]

Applicants’ response

[2]Reasons, [76].

In May 2018, the applicants requested the Mornington Peninsula Shire Council (‘Council’) to amend the zoning of the beach land from PCRZ to General Residential, but the Council refused this request.
In April 2021, the Secretary consented to an application for a planning permit to lay buffalo turf and install an irrigation system on the beach land. As at the date of the hearing of the appeal, that application had not been determined by the Council.

The proceeding below

On 23 March 2020, the applicants commenced a proceeding in the Trial Division seeking declarations that both the Exemption Decision and the Amendment Decision were invalid and of no legal effect. Further or alternatively, the applicants sought a declaration that the Amendment Decision involved an ‘acquisition by subterfuge’ of the beach land, and damages to compensate them for that acquisition.
At trial, the applicants contended that:
(a)the Planning Minister had regard to irrelevant considerations when exercising his power under s 20(4) of the Planning Act to make the Exemption Decision;
(b)the Planning Minister failed to consider matters relevant to the exercise of his power to make the Exemption Decision to which he was obliged to have regard;
(c)the Planning Minister made the Exemption Decision for improper purposes; and
(d)the Amendment Decision was invalid for a number of reasons, relevantly, because the Exemption Decision was invalid, the Amendment Decision was made for improper purposes and Amendment VC115 impermissibly conferred power on the Secretary.
In the alternative, the applicants claimed that the Amendment Decision deprived them of the beneficial use of the beach land, and was an acquisition by subterfuge.
On 5 August 2021, the primary judge delivered her reasons for decision and, on 16 August 2021, made orders dismissing the proceeding.[3]
[3]Ibid [127].
In summary, the primary judge found that neither the Exemption Decision nor the Amendment Decision was made for an improper purpose. Her Honour found that the Minister’s governing purpose in making the Decisions was to avoid inappropriate development of beaches and other land in the PCRZ, and this purpose was a legitimate reason for the exercise of the Minister’s powers in ss 4J and 20(4) of the Planning Act. Her Honour further held that the power conferred on the Secretary by the Amendment Decision is not repugnant to the Planning Act because the Secretary’s power to refuse consent is not broad and unreviewable; it is narrow, able to be exercised only in limited circumstances, and subject to merits review by the Victorian Civil and Administrative Tribunal (‘Tribunal’).

Proposed grounds of appeal

The applicant now seeks to agitate the following grounds of appeal against the decision and orders of the primary judge:
(1)The primary judge erred in holding that the Planning Minister did not act for an improper purpose in making the decisions to exempt himself under s 20(4) of the Planning Act and to approve Amendment VC115 because, in making that holding, the primary judge:
(a)erroneously disregarded statements and comments made by the Minister;
(b)failed to undertake the correct analytical exercise by focussing upon the effect of Amendment VC115 rather than the purpose that the Planning Minister had in making and approving the Amendment; and
(c)failed to apply the applicable and correct legal test in determining whether the Planning Minister acted for an improper purpose.
(2)The primary judge erred in holding that the power conferred upon the Secretary by cl 36.03–3 of the Planning Scheme is not antithetical or repugnant to the Planning Act because, in making that holding, the primary judge failed to properly construe and to ascertain the true ambit of the power conferred upon the Secretary.
The applicants seek a declaration concerning the Amendment Decision only. They do not challenge Exemption Decision other than in the context of seeking to invalidate the Amendment Decision.

Statutory framework

The relevant provisions of the Planning Act are to be found in Authorised Version No. 111, incorporating amendments as at 1 December 2013. We reproduce below in large part the relevant provisions as identified and described by the primary judge.

Objectives of the Planning Act and planning framework

The purpose of the Planning Act is ‘to establish a framework for planning the use, development and protection of land in Victoria in the present and long-term interests of all Victorians’.[4]
[4]Planning Act, s 1, as at 1 December 2013.
Section 4(1) sets out the objectives of planning in Victoria, which include:
(a)to provide for the fair, orderly, economic and sustainable use, and development of land;
(b)to provide for the protection of natural and man-made resources and the maintenance of ecological processes and genetic diversity;
…
(f)to facilitate development in accordance with the objectives set out in paragraphs (a),(b),(c) (d) and (e);
(g) to balance the present and future interests of all Victorians.
Section 4(2) sets out the objectives of the planning framework established by the Planning Act, relevantly:
(a)to ensure sound, strategic planning and co-ordinated action at State, regional and municipal levels;
(b)to establish a system of planning schemes based on municipal districts to be the principal way of setting out objectives, policies and controls for the use, development and protection of land;
(c)to enable land use and development planning and policy to be easily integrated with environmental, social, economic, conservation and resource management policies at State, regional and municipal levels;
…
(f)to provide for a single authority to issue permits for land use or development and related matters, and to co-ordinate the issue of permits with related approvals;
(g)to encourage the achievement of planning objectives through positive actions by responsible authorities and planning authorities;
(h)to establish a clear procedure for amending planning schemes, with appropriate public participation in decision making;
(i)to ensure that those affected by proposals for the use, development or protection of land or changes in planning policy or requirements receive appropriate notice;
(j)to provide an accessible process for just and timely review of decisions without unnecessary formality;

Victoria Planning Provisions

Section 4A(1) of the Planning Act provides that the VPPs are a set of standard planning provisions prepared and approved by the Minister to assist in providing a consistent and coordinated framework for planning schemes in Victoria. They may contain any matter which may be included in a planning scheme.[5]
[5]Ibid s 4A(2).
Section 4B provides for the preparation of an amendment to the VPPs:
4B Amendment of Victoria Planning Provisions
(1)The Minister may at any time prepare an amendment to the Victoria Planning Provisions.
(2)The Minister may authorise any other Minister or any public authority or municipal council to prepare an amendment to the Victoria Planning Provisions.
(3)Subject to subsection (4), sections 17 to 34 and Part 8 apply to the preparation of an amendment to the Victoria Planning Provisions as if—
(a)the amendment were an amendment to a planning scheme prepared under Part 3; and
(b)the Minister or the authorised body or person were the planning authority.
(4)Sections 21(3), 22(3), 23(3) and 25(3) do not apply to the preparation of an amendment to the Victoria Planning Provisions.
An amendment prepared under s 4B may be approved by the Minister under s 4C:
4C Approval of amendment
(1)The Minister may—
(a)approve an amendment or part of an amendment to the Victoria Planning Provisions prepared by the Minister or submitted to the Minister under section 4B—
(i)with or without changes; and
(ii)subject to any conditions the Minister wishes to impose; or
(b)refuse to approve the amendment or part of the amendment.
(2)If the Minister approves only part of an amendment to the Victoria Planning Provisions that part becomes a separate amendment.
(3)The Minister may approve further parts of an amendment to the Victoria Planning Provisions at any time.

The Minister must publish notice of the approval of an amendment to the VPPs in the Government Gazette.[6] The amendment comes into operation on publication of the notice of approval, or on any later day specified in the notice.[7] The notice of approval must be laid before each House of Parliament, either of which may revoke the amendment by resolution.[8]
[6]Ibid s 4D.
[7]Ibid s 4E.
[8]Ibid ss 4F, 38.
Section 4J provides for the amendment of planning schemes by the VPPs:
4J Amendment of planning schemes by Victoria Planning Provisions
(1)An amendment to the Victoria Planning Provisions may also provide for an amendment to one or more specified planning schemes.
(2)On the approval of an amendment to the Victoria Planning Provisions which provides for an amendment to a planning scheme, the amendment to the planning scheme is deemed to be approved under Part 3.
(3)The notice of the approval of the amendment to the Victoria Planning Provisions given under section 4D is deemed also to be notice of the approval under Part 3 of each amendment of a planning scheme provided for in the amendment to the Victoria Planning Provisions.
(4)An amendment to a planning scheme provided for in an amendment to the Victoria Planning Provisions comes into operation—
(a)when the amendment to the Victoria Planning Provisions comes into operation; or
(b)on any later day or days specified in the notice of approval of the amendment to the Victoria Planning Provisions given under section 4D.
(5)Part 3 (except Divisions 1 and 2 and sections 29 to 37) applies to an amendment to a planning scheme provided for in an amendment to the Victoria Planning Provisions.
(6)Nothing in section 8 limits the power of a person authorised under section 4B to prepare an amendment to a planning scheme under this section.

Making and amending planning schemes

Part 2 of the Planning Act provides for the preparation and approval of planning schemes. Section 6 sets out what may be included in a planning scheme:
6 What can a planning scheme provide for?
(1)A planning scheme for an area—
(a)must seek to further the objectives of planning in Victoria within the area covered by the scheme; and
(aa)must contain a municipal strategic statement, if the scheme applies to the whole or part of a municipal district; and
(b)may make any provision which relates to the use, development, protection or conservation of any land in the area.
(2)Without limiting subsection (1), a planning scheme may—
(a)set out policies and specific objectives;
(b)regulate or prohibit the use or development of any land;
(c)designate land as being reserved for public purposes;
(d)include strategic plans, policy statements, codes or guidelines relating to the use or development of land;
…
(fa)designate a Minister, public authority or municipal council as an acquiring authority for the purposes of this Act for land reserved for public purposes;
…
(h)require specified things to be done to the satisfaction of the responsible authority a Minister, public authority, municipal council or referral authority;
(ha)require specified information to be provided with an application for a permit;
(hb)set out different procedures for particular classes of applications for permits;
…
A planning scheme must be structured in accordance with s 7, which provides that a planning scheme include and specify State standard provisions (comprising provisions selected from the VPPs), and local provisions.
A planning scheme is prepared and may be amended by a ‘planning authority’. A municipal council is a planning authority for a planning scheme in force in its municipal district.[9] The Planning Minister is a planning authority for every planning scheme, as provided in s 8:
[9]Ibid s 8A.
8 Minister is planning authority
(1)The Minister may prepare—
(a)a planning scheme for any municipal district or other area of Victoria; or
(b)amendments to any provision of a planning scheme.
(2)The Minister is a planning authority under this Act.
(3)This Act applies to a planning scheme prepared by the Minister as if it were an amendment to a planning scheme.
Section 12 sets out the duties and powers of planning authorities, relevantly:
12 What are the duties and powers of planning authorities?
(1)A planning authority must—
(a)implement the objectives of planning in Victoria;
(b)provide sound, strategic and co-ordinated planning of the use and development of land in its area;
(c)review regularly the provisions of the planning scheme for which it is a planning authority;
(d)prepare amendments to a planning scheme for which it is a planning authority;
…
(2)In preparing a planning scheme or amendment, a planning authority—
(a)must have regard to the Minister’s directions; and
…
Sections 17, 18 and 19 of the Planning Act require a planning authority to exhibit and give notice of any amendment it has prepared to a planning scheme.[10] Section 20 contains exemptions from these notice requirements. In particular, where the Minister is the planning authority, s 20(4) provides that:
The Minister may exempt himself or herself from any of the requirements of sections 17, 18 and 19 and the regulations in respect of an amendment which the Minister prepares, 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.
[10]Section 19(1) requires a planning authority to give notice to the persons specified, including the owners and occupiers of land that the planning authority believes may be materially affected by the amendment. If a planning authority considers that the number of owners and occupiers affected makes it impractical to notify them individually, it may instead take reasonable steps to ensure that public notice of the proposed amendment is given in the area affected by the amendment: Planning Act, ss 19(1A), (1B).
In this case, the Planning Minister exempted himself from the requirements of ss 17, 18 and 19 pursuant to s 20(4). There is no direct challenge to that decision (the Exemption Decision). However, the reasons given for the Exemption Decision form part of the context for considering whether the Minister had an improper purpose in making the Amendment Decision.
After complying with the requirements of pt 3 of the Planning Act, the planning authority may adopt the amendment with or without changes.[11] Section 35(1) then provides for the approval of the amendment by the Minister, which comes into effect on the publication of a notice of approval in the Government Gazette:[12]
[11]Ibid s 29.
[12]Ibid ss 36, 37.
The Minister may—
(a)approve an amendment or a part of an amendment prepared by the Minister or submitted to the Minister under section 31—
(i) with or without changes; and
(ii)subject to any conditions the Minister wishes to impose; or
(b) refuse to approve the amendment or part of the amendment.
Section 38 provides for the revocation by Parliament of an amendment to a planning scheme:
38      Parliament may revoke an amendment
(1)The Minister must cause a notice in the prescribed form of the approval of every amendment to be laid before each House of the Parliament within 10 sitting days after it is approved.
(1AAA)A notice under subsection (1) must state whether the Minister prepared the
         amendment under section 20A.
(1A)      A notice under subsection (1) must state whether the Minister has exempted
          the planning authority or himself or herself from any of the requirements of
section 17, 18 or 19 or the regulations.
(1B)If an exemption referred to in subsection (1A) has been given, the notice
          must—
(a)state the nature of the exemption; and
(b)state the notice, if any, given of the amendment; and
(c)state whether the Minister consulted the responsible authority before giving the exemption; and
(d)if the responsible authority was consulted, include a summary of the authority’s recommendations (if any) in relation to the exemption.
(2)An amendment may be revoked wholly or in part by a resolution passed by either House of the Parliament within 10 sitting days after the notice of approval of the amendment is laid before that House.
…

Permits to use and develop land

Part 4 of the Planning Act makes provision for permits that are required by planning schemes.
If a planning scheme requires a permit to be obtained for the use and development of land, the application for the permit must be made to the responsible authority in accordance with s 47. Section 47(1)(a) provides that an application ‘must be made to the responsible authority in accordance with the regulations’. Section 47(1) then sets out various things that must accompany an application, namely:
(a)the prescribed fee (s 47(1)(b));
(b)information required by the planning scheme (s 47(1)(c)); and
(c)certain information concerning any registered restrictive covenant (ss 47(1)(d)).
Section 48 provides that if the applicant for a permit is not the owner of the land for which the permit is needed, then an application must be either signed by the owner, or include a declaration that the applicant has notified the owner about the application.
Notice of an application for a permit must be given by the responsible authority as provided in s 52, including ‘to any person to whom the planning scheme requires it to give notice’.[13]
[13]Ibid s 52(1)(c).
The responsible authority must also give a copy of the permit application to every person or body that the planning scheme specifies as a referral authority.[14] The referral authority must then advise the responsible authority:
(a)whether it does not object;
(b)whether it does not object if the permit is subject to specified conditions; or
(c)whether it objects to the granting of the permit on any specified ground.[15]
[14]Ibid s 52
[15]Ibid s 56(1).
Before deciding on an application, the responsible authority must consider various matters, which include, amongst other things, the relevant planning scheme, the objectives of planning in Victoria and all objections which it has received.[16] After considering those matters, the responsible authority may decide to grant the permit, with or without conditions, or to refuse the permit on any ground it thinks fit.[17] If the application is objected to by a referral authority specified in the planning scheme as a ‘determining referral authority’, the responsible authority must decide to refuse the permit.[18]
[16]Ibid, s 60.
[17]Ibid s 61(1).
[18]Ibid ss 55(4)(a), 61(2).
Division 2 of pt 4 provides for review by the Tribunal of various decisions in relation to permits, including a decision by a responsible authority to refuse to grant a permit,[19] and a failure to grant a permit within the prescribed time.[20]
[19]Ibid s 77.
[20]Ibid s 79.
Additional rights of review by the Tribunal are provided in pt 6, div 5, in which s 149 provides:
149 Application for review
(1)A specified person may apply to the Tribunal for the review of—
(a)a decision of a specified body in relation to a matter if a planning scheme specifies or a permit contains a condition that the matter must be done to the satisfaction, or must not be done without the consent or approval, of the specified body; or
…
(2)An application for review of a decision referred to in subsection (1)(a), (b) or (c) must be made within 28 days after the day on which the decision is made.
(3)The responsible authority is a party to any proceedings under this section.
A ‘specified body’ is defined in s 148 to include a ‘public authority’ and a ‘referral authority’. A ‘public authority’ is defined in s 3 to mean ‘a body established for a public purpose by or under any Act’, not including a municipal council.
The planning framework established by the Planning Act also includes provision, in pt 5, for compensation where financial loss is suffered by an owner or occupier of land reserved for a public purpose under a planning scheme.[21]
[21]Reasons, [15]–[36].

Background to Amendment VC115

On or about 4 February 2014, the Planning Minister met with the Climate Minister to discuss issues arising from the Registrar’s decision to adjust the titles to the Fox land. On 21 February 2014, the Climate Minister sought advice on appropriate planning controls regarding use and development along Point King Beach and other beaches with property boundaries to the high water mark of Port Phillip Bay.
As discussed, a brief to the Planning Minister was prepared on 24 February 2014 (‘February briefing’) that noted that the title to the Fox land meant that part of it was in Residential 1 zone with the extended title (the beach land) in the PCRZ. It recommended that the Planning Minister consider an amendment to the PCRZ to require planning permits for all buildings or works on all land zoned PCRZ where there is no public land manager (referred to as ‘Option 1’).
The February briefing contained the following background:
The Registrar of Titles recently updated the title boundary of two properties at Point King, Portsea owned by Mr Lindsay Fox to include the foreshore and part of the beach.
…
You have sought advice on possible planning responses to protect the ‘beach’ component of this land and other land where this issue may be an issue. It is recommended that you maintain the ‘beach’ land within the existing PCRZ as the most appropriate approach to protecting the beach from inappropriate use and development. A proposed amendment to the PCRZ will ensure that no use or development can occur on the land without the consent of a relevant public land manager which in this instance is the Secretary to the Department of Environment and Primary Industries.
Planning decisions alone are not capable of resolving this issue. The above approach presents an appropriate response until such time as the more fundamental policy issue relating to ownership and public access to the beach is resolved by government, post legal advice. This will then inform the appropriate long term planning response for the land in question and other land with similarly ambulatory titles.
Among other things, the February briefing informed the Planning Minister as follows:
The PCRZ significantly restricts the use and development of the beach land and requires the consent of the [public land manager] as part of any planning permit application. In this instance the [public land manager] would be [the Department] but for the recent change to the title boundary. Under normal circumstances, failure to obtain the consent of the relevant [public land manager] voids the lodgement of a planning permit application.
The February briefing explained the rationale for the recommendation to amend the PCRZ as follows:
It is proposed that you consider an amendment to the PCRZ of the Victoria Planning Provisions (VPP) to clarify the application of Clause 62.02-2 (buildings and works not requiring a permit) and to require the consent of the Secretary, DEPI for any application to use or develop land where there is no PLM [public land manager] (Option 1).
(a)At present, given the public purpose of the zone, and given there is no PLM in relation to the land and possibly other land, it is recommended clause 36.03-3 of the PCRZ is amended so as to require the consent of the Secretary to DEPI for any such application …
(b)In addition, it is proposed to amend Clause 36.03-2 ‘Permit requirements’ to require a planning permit for all building or works that occur on all land where there is no PLM under the PCRZ. This will include overriding Clause 62.02-2 which would otherwise avoid the need for a permit in relation to, for example, a swimming pool, dependant’s persons unit, fence, etc. This approach would not impact a PLM’s role and responsibility to manage crown land under the PCRZ.
(c)The proposed amendments will have the benefit of strengthening the PCRZ to require a permit for all use, building or works for the beach land and apply to all other potential situations where similar titles exist but have yet to be acted on by the property owner and require the consent of the adjacent PLM.
(d)This approach presents minimal risk as it has broad application and does not seek to single out individual sites, and in addition is an appropriate planning response while longer term legal options around property title and ownership matters are investigated further by DEPI.
(e)This option (Option 1) will require an amendment to the VPP subject to your approval.
In discussing alternative approaches, the February briefing noted that changes to property titles, which occur regularly, sometimes lead to properties being included in multiple zones. While the application of the PCRZ to private land was anomalous, there was no requirement for the Planning Minister to rezone land to remove the anomaly.
As discussed, on 7 March 2014, the Minister accepted the recommendation to proceed with Option 1.
A further briefing was prepared on 27 March 2014 (‘March briefing’). The March briefing was described as a ‘resubmission’ of Amendment VC115, and it included a recommendation to make the Exemption Decision.
On 28 March 2014, the Planning Minister signed an instrument authorising the preparation, adoption and approval of Amendment VC115, in the following terms:
Preparation, Adoption and Approval of an Amendment by the Minister for Planning
I, Matthew Guy, Minister for Planning:

1. Preparation of amendment
Have prepared Amendment VC115 to the Victoria Planning Provisions and all planning schemes in Victoria in accordance with sections 4B, 4J and 8 of the Planning and Environment Act 1987 (the Act), having:

a.    in accordance with section 12(2)(a) of the Act, had regard to the Minister’s directions;

b.    in accordance with section 12(2)(aa) of the Act, had regard to the Victoria Planning Provisions;

c.    in accordance with section 12(2)(ab) of the Act, had regard to any municipal strategic statement, strategic plan, policy statement, code or guideline which forms part of the scheme;

d.    in accordance with section 12(2)(b) of the Act, taken into account any significant effects which I consider the amendment might have on the environment or which I consider the environment might have on any use or development envisaged in the amendment; and

e.    in accordance with section 12(2)(c) of the Act, taken into account the social effects and economic effects of the amendment.

Having prepared Amendment VC115 to the Victoria Planning Provisions and all planning schemes in Victoria in accordance with sections 4B, 4J and 8 of the Act:

2. Exemption of amendment exempt myself from the requirements of sections 17, 18 and 19 of the Act and the regulations in accordance with section 20(4) of the Act because the interests of Victoria make such an exemption appropriate; and

3. Adoption of amendment adopt the amendment without changes in accordance with section 29 of the Act; and

4. Approval of amendment approve the amendment without changes in accordance with section 4C of the Act.

The Notice of Approval of Amendment VC115, published in the Government Gazette on 4 April 2014 (‘Notice of Approval’), relevantly stated as follows:
The Amendment changes the Victoria Planning Provisions and all planning schemes in Victoria by:
•providing that the permit exemptions at Clauses 62.01, 62.02–1 and 62.02–2 do not apply to permit requirements in Clause 36.03 ‘Public Conservation and Resource Zone’;
•amending Clause 36.03–1 ‘Tables of Uses’ to require a use listed in Clause 62.01 be subject to conditions that a use must be conducted by, on behalf of a public land manager or be specified in an incorporated plan; and
•amending Clause 36.03–3 to require an application for a permit to be accompanied by the written consent of the Secretary to the Department of Environment and Primary Industries where there is no public land manager for the subject land.

Amendment VC115 came into operation on the publication of the Notice of Approval. It amended cl 36.03 (PCRZ) and cl 62 (Uses, Buildings, Works, Subdivisions and Demolition Not Requiring a Permit) of the VPPs and every planning scheme in Victoria.
The critical amendment was to cl 36.03–3. Prior to Amendment VC115, cl 36.03–3 read:
An application for a permit by a person other than the relevant public land manager must be accompanied by the written consent of the public land manager, indicating that the public land manager consents generally or conditionally either:
•To the application for permit being made.
•To the application for permit being made and to the proposed use or development.
Amendment VC115 added the following words at the end of cl 36.03–3:
Where there is no public land manager, an application for a permit must be accompanied by the written consent of the Secretary to the Department of Environment and Primary Industries.
The effect of the amendments was explained in the accompanying explanatory report (‘Explanatory Report’), relevantly as follows:
Why is the amendment required?
The Minister for Environment and Climate Change has requested clarification regarding the appropriateness of existing planning controls relating to situations where changes to property boundaries extend private ownership of land into the Public Conservation and Resource Zone.
Amendment VC115 amends Clause 62 and Clause 36.03 of the Victoria Planning Provisions to ensure where there is no public land manager, all use and development requires a planning permit, and has the consent of the Secretary to the Department of Environment and Primary Industries to ensure that the Crown’s interests are taken into consideration.
How does the amendment implement the objectives of planning in Victoria?
The amendment implements the objectives in section 4 of the Planning and Environment Act 1987 (the Act). In particular, it supports the objectives (b), (d) and (g):
(b)To provide for the protection of natural and man-made resources and the maintenance of ecological processes and genetic diversity.
(d)To conserve and enhance those buildings or other places which are of scientific, aesthetic, architectural or historical interest [or] otherwise of special cultural value; and
(g) To balance the present and future interests of all Victorians.
How does the amendment address any environmental, social and economic effects?
The amendment will generate positive environmental, social and economic benefits by ensuring that the views of the Secretary to the Department of Environment and Primary Industries, on behalf of the Crown, are considered and applied for any proposed use and development of land under the Public Conservation and Resource Zone where no public land manager has been declared.
…
How does the amendment support or implement the State Planning Policy Framework (SPPF)?
This amendment supports the objectives and strategies of the SPPF in particular Clause 12 ‘Environmental and landscape values’ by ensuring that consideration of all matters relevant to land are considered and the Crown is able to provide advice, guidance and its consent to appropriate use and development of land.
Does the amendment make proper use of the Victoria Planning Provisions?
The amendment makes proper use of the Victoria Planning Provisions by strengthening the Public Conservation and Resource Zone to ensure that the appropriate planning permit triggers and consents are in place for all land covered by the zone.
How does the amendment address the views of any relevant agency?
The Minister for Environment and Climate Change sought my advice. The Department of Environment and Primary Industries was consulted and supports the changes to Clause 36.03 regarding the requirement for consent to be sought from its Secretary.
In addition to the Explanatory Report, Amendment VC115 was the subject of a media release issued by the Planning Minister on 4 April 2014, titled ‘Beaches to be protected from private development’.
The April media release contained the following captions:
·    Victorian beaches now safe from private development
·    Changes to be made to privately held land with a public planning zone
·    State Government to oversee permit process on these land parcels
And the following text:
Planning Minister Matthew Guy has ensured that development on beaches covered by a Public Conservation and Resource (PCR) Zone can only proceed with agreement by the State Government.
This will cover a loophole that until now has allowed those who own private land within this zone to build permanent structures as of right.
‘PCR Zones will now be safe from private development. The Victorian Coalition Government will not allow public accessed beaches to be built on, where the land is technically held in private ownership’, Mr Guy said.
The Coalition Government has moved quickly to close this loophole and give certainty to beach goers and further, is examining legislative options around the clarification of title boundaries along Port Phillip Bay.
The amendments to this zone will ensure that no use or development can occur on the land without a planning permit, every application for which must have the consent of the Secretary of the Department of Environment and Primary Industries. Permit applications will be assessed by the local planning authority, which is in most cases the local council.
‘This reform is important to ensure that areas for public conservation are subject to public oversight, ensuring their enjoyment by future generations of Victorians,’ Mr Guy said.
‘With this change, any permit application to use or develop land within this zone will require consent. This is wide-ranging and includes fences, signs, outdoor furniture, shade sails, flagpoles, sheds, pergolas, verandahs and decks. Until today’s reforms, building these structures on private land in this zone did not require a planning permit.
‘This is an appropriate planning response while the government works on the complex legal process of resolving the issue involving defining a boundary such as the high water mark.
‘This change to the PCR zone will ensure proper management of beaches, it will prevent inappropriate development and construction from occurring. Beaches will remain accessible for everyone in this state — as they should be’.
The Amendment VC115 will be gazetted today.
The April media release is of some importance to the applicants’ contention that the Amendment Decision was made for an improper or extraneous purpose.[22]
[22]See [77], [85] below.
The Minister had also published written reasons for the Exemption Decision on 28 March 2014. Although the purpose of these reasons was to explain the Minister’s decision to exempt himself from notice requirements, these reasons shed some light on the purpose of Amendment VC115:
REQUEST FOR INTERVENTION
1.      The Minister for Environment and Climate Change has requested clarification regarding the status of notification and consent regarding the Crown’s interests on land where no public land manager exists under the Public Conservation and Resource Zone.
…
BACKGROUND
5.      The Minister for Environment and Climate Change has requested clarification regarding the appropriateness of existing planning controls relating to situations where changes to property boundaries extend private ownership of land into the Public Conservation and Resource Zone.
…
BENEFITS OF EXEMPTION
7.      This exemption provides prompt clarification for relevant Planning and Responsible Authorities to support informed decision making taking into account the Crown’s views and/or interests relating to areas where no public land manager exists for all use and/or development applications.
…
ASSESSMENT AS TO WHETHER BENEFITS OF EXEMPTIONS OUTWEIGH EFFECTS ON THIRD PARTIES
9.      The benefits of exemption outweigh effects on third parties as this Amendment clarifies process matters for the application of a planning permit where there is no public land manager to ensure that the public interests of the Crown are considered for all land within the Public Conservation and Resource Zone.
10.    Land within the Public Conservation and Resource Zone represents some of the most important environmentally, ecologically, and visually significant land within the State ranging from coastal foreshores, riverine and mountainous bushland settings.
11.    This Amendment requires the views of the Crown to be sought regarding any proposal to use and develop land and taken into consideration and applied as part of any decision by a Responsible Authority.
12.    This Amendment also requires a wider range of building and works to be subject to a planning permit application to ensure only appropriate use and development occurs within the Public Conservation and Resource Zone.
REASONS FOR INTERVENTION
13. I provide the following reasons for my decision to exercise my power under section 20(4) of the Act.
14.    I am satisfied that the interests of Victoria make such an exemption appropriate because:
a)The regulation of a wider range of building and works and the consideration of the views of the Crown regarding all land within the Public Conservation and Resource [sic] Zone is important to the public interest of the State of Victoria.
b)The change reflects an amendment to all planning schemes and the requirement to provide notification is not considered practical.
Ground 1 – The primary judge erred in finding that the Planning Minister did not act for an improper purpose

The holdings of the primary judge

In the Reasons, the primary judge identified the improper or ulterior purpose said to be in play in making both the Exemption Decision and the Amendment Decision as follows:
[The applicants] submitted that the [Planning] Minister’s decisions would not have been made but for two extraneous purposes:
(a)first, specifically depriving the Fox parties of their lawful interest in, or beneficial use of, the beach land; and
(b)second, preventing the use or development by the Fox parties of the beach land unless the Crown, in its absolute discretion, agreed to the making of a permit application.[23]
[23]Reasons, [74].
The primary judge recorded that, in oral submissions, the applicants clarified the improper purpose to be placing the beneficial use and development of the beach land in the control of the government, with no opportunity for the land owner to seek review in the Tribunal if the control was exercised to deny that use. The applicants accepted that the Amendment did not affect their proprietary interest in the beach land, and they did not press their argument to that effect. Their point was that the complete and unreviewable controls placed over the use and development of the beach land had the effect of denying them enjoyment of their property.[24]
[24]Ibid [75].
The evidence relied on by the applicants to establish this purpose or these purposes went beyond the Exemption Reasons. They relied on the briefing to the Minister prepared on 24 February 2014, which recommended the preparation of Amendment VC115. They also relied on the media reports.[25] In addition, the applicants relied on the fact that the Exemption Decision and the Amendment Decision were made in direct response to the Registrar’s correction of the title boundaries to the Fox land. They submitted that the Planning Minister’s reported statements established that he acted for the purpose of punishing or disadvantaging them by seeking to undo the benefits that flowed from the correction of their titles.[26]
[25]Ibid [76].
[26]Ibid [77].
The primary judge stated that she was not persuaded that the Minister’s purposes in making either the Exemption Decision or the Amendment Decision included the extraneous purposes alleged by the applicants. She stated that the main reason for her conclusion was that Amendment VC115 simply did not have the effect of depriving the applicants of their lawful interest in, or beneficial use of, the beach land, and nor did it give the Secretary complete and unreviewable power to prevent them from using or developing that land.[27]
[27]Ibid [83].
The primary judge stated that she regarded the comments attributed to the Planning Minister in the media reports with ‘some caution’, in part because she was not confident they were an accurate or complete account of the Planning Minister’s public statements in relation to the Amendment. Furthermore, the comments attributed to the Planning Minister in February 2014 could not be relied upon as evidence of his purpose in making the Exemption Decision and the Amendment Decision in late March 2014, after he had received and considered advice from the Department. While the April media release could be relied on as evidence of the Minister’s purpose, it had to be considered as a whole, together with the Exemption Reasons and the two briefs to the Minister that informed his decisions.[28]
[28]Ibid [84]–[85].
The primary judge concluded that, having considered all of that evidence, the Minister’s governing purpose in making the decisions was to avoid inappropriate development of beaches and other land in the PCRZ. This purpose was achieved by Amendment VC115 in that it ensured that the State would be alerted to any proposed use or development of land in the PCRZ. It also enabled the State, through the Secretary, to give an early indication of its attitude to a permit application affecting private land, including any conditions that the State would seek to have attached to a permit.[29]
[29]Ibid [85].
Her Honour also stated that while she accepted that Amendment VC115 was prompted by the revelation that the Registrar had extended the title boundaries to the Fox land recorded on the Register, she did not accept that it was specifically directed at the applicants. It was a state-wide planning response to an anomaly that had only recently come to the Minister’s attention. Significantly, the requirement for a permit application to be accompanied by the Secretary’s written consent where there is no public land manager did not confer on the Secretary an absolute and unreviewable power of veto.[30] The primary judge held that the Secretary’s power to refuse consent is a narrow one that can be exercised to deny the making of a permit application in only limited circumstances. Moreover, any decision by the Secretary to refuse consent would be subject to merits review by the Tribunal.[31]

Applicants’ submissions

[30]Ibid [86]–[87].

[31]Ibid [87]–[88].

As discussed, the applicants contended at trial that the improper purpose motivating the Amendment was the purpose of placing the beneficial use and development of the beach land in the control of the government, with no opportunity for the applicants to seek review in the Tribunal if the control was exercised to deny that use.[32] The complaint turned, principally, on the requirement in cl 36.03–3 to obtain the Secretary’s consent to make an application for a permit to use or develop the beach land. The requirement to obtain such consent, it was argued, is not only unusual and unorthodox, but is extraneous to the scheme in pt 4 of the Planning Act and demonstrates that the purpose of the amendments was to negate the beneficial effect of the adjustment to the Fox titles. That articulation of the improper purpose — which was said to be ‘specifically depriving the Fox parties … of their beneficial use of the beach land’ — was maintained on the appeal.
[32]See ibid [74]–[75].
In oral submissions before us, the applicants conceded that the Secretary’s decision-making under cl 36.01-3 was reviewable by the Tribunal. However, they maintained that Amendment VC115 advanced the improper purpose of depriving them of the beneficial use of that part of the Fox land that was the subject of the title amendments.
The applicants submitted that the April media release clearly articulated a purpose designed to preserve public access to the beach, which was not a purpose contemplated by the Planning Act. They submitted that it was apparent from the documents in question that the purpose of Amendment VC115 was to ensure that the beach land remained publicly accessible and would continue to have a role as a public beach. In seeking to further that purpose, the applicants submitted, the Minister acted outside of the framework of the Planning Act.
The applicants submitted that the fact that the adjustment of the Fox titles was an impetus for Amendment VC115 is part of a group of facts demonstrating the improper purpose. Before the adjustment to the Fox titles, there was no consideration of any difficulty raised by the existence of the ambulatory titles. However, once the Fox titles were adjusted, the Minister made a statement in the press expressing ‘outrage’ at the adjustment. This was then followed by a series of actions directed to giving the State government complete control of the development of the beach land by requiring State agreement to the making of any proposal for development. When those matters were put together with the statement in the April media release that beaches in the PCRZ were to remain accessible for everyone in the State, the Planning Minister’s improper operative subjective purpose was apparent.
The applicants submitted that it was not reasonable or rational for the primary judge to discard the statements reported as having been made by the Planning Minister in February 2014 and that there was no warrant for the judge to confine herself predominantly to the documents said to record the Planning Minister’s reasons for approving the Amendment. To the contrary, the media statements made by the Planning Minister in February 2014 provided direct and probative evidence of the Minister’s motivation and state of mind in initiating, and ultimately, approving Amendment VC115.
The applicants submitted that a party seeking to impugn a decision on the basis that it was made for an improper purpose can go behind the formal reasons and rely upon direct and indirect evidence of the decision-maker’s state of mind.[33] In this case, the Planning Minister admitted that the quotations in the newspaper articles were recorded and attributed to him, but otherwise did not admit the statements. According to the applicants, the non-admission of the statements is materially different from the proposition that the statements were not made or could not be relied upon, as was ultimately found by the primary judge. The Planning Minister had not previously disavowed or challenged the statements attributed to him and did not advance any evidence to impugn the authenticity or reliability of the newspaper articles.
[33]Citing Webber v Racing New South Wales [2017] NSWSC 687, [22] (Beech-Jones J); Telstra Corporation Ltd v Hurstville City Council (2002) 118 FCR 198, 221 [50] (Sundberg and Finkelstein JJ); [2002] FCA 385.
Further, the applicants submitted, the primary judge erred in disregarding the statements recorded in the newspaper articles on the basis that they had no bearing on the decisions ultimately made by the Planning Minister on 28 March 2014. The Court’s enquiry required an examination of the ‘operative subjective purpose’ of the Planning Minister and his expressly stated motivation for making the Amendment and Exemption Decisions is probative of that purpose, even if the statements precede the making of the Decisions.[34] The purpose for initiating the decision-making process in order to achieve the specified result necessarily bears upon the purposes for which the relevant decision is made.
[34]Citing Re MacTiernan; Ex parte Coogee Coastal Action Coalition Inc [2004] WASC 264, [51]–[52] (McLure J); DPP (Cth) v Galloway [2017] VSCA 120, [195] (Maxwell P, Redlich and Beach JJA) (‘Galloway’).
In any event, it was submitted, the statements made in February 2014 were proximate to the actual decision to adopt ‘Option 1’, which took place as early as 24 February 2014.

The applicants further submitted that the primary judge erred in construing the April media release against the Exemption Reasons and the briefs purportedly informing the Decisions. According to the applicants, it is not permissible to infer a decision-maker’s purpose by reference to a briefing note or departmental memorandum that is said to have informed the outcome of a decision-making process.[35]
[35]Citing Johnson v Moyne Shire Council (2012) 192 LGERA 65, 77–8 [45] (Dixon J); [2012] VSC 393; Austral Monsoon Industries Pty Ltd v Pittwater Council (2009) 75 NSWLR 169, 187 [101] (Spigelman CJ, McColl JA agreeing at 191 [130], Handley AJA agreeing at 191 [131]); [2009] NSWCA 154.
More generally, the applicants submitted that it was not open to the primary judge to ‘cobble together’ a patchwork of documents in order to point to some justifying or proper purpose, having recognised that the April media release may have betrayed an improper or ulterior purpose. There is no reason, as a matter of principle, why the formal departmental documents are to be preferred or given more weight than the Planning Minister’s subjective and express statements of his state of mind. According to the applicants, the Planning Minister’s express statements of purpose are more likely to disclose his ‘operative subjective purpose’ than formal departmental documents which, it was submitted, are likely to be sanitised.
As to the primary judge’s holding that the Planning Minister did not act for an improper purpose because Amendment VC115 had general rather than ad hominem application, the applicants submitted that this confused the purpose of making the Amendment with the effect of the Amendment. The primary judge failed to consider whether the Planning Minister acted for the alleged improper purpose in the sense that he would not have initiated and approved Amendment VC115 but for the improper purpose. According to the applicants, the evidence before the primary judge, and the objective factual background, left little doubt that, but for the Planning Minister’s purported outrage at the applicants’ exercise of their proprietary rights, Amendment VC115 would not have been initiated, let alone approved. They point out that the Planning Minister did not adduce any evidence to suggest that the matters addressed by Amendment VC115 were matters that were otherwise of concern.
Finally, the applicants submitted that the primary judge erred in holding that the Planning Minister did not act for, or have, an improper purpose because Amendment VC115 did not give the Secretary complete and unreviewable power to prevent them from using or developing the relevant land. It is submitted that this reasoning is wrong in that it treats as coterminous the concepts of purpose and effect. Further, for the reasons argued under Ground 2, the premise of the primary judge’s reasoning is wrong and cannot be accepted.

Respondent’s submissions

The respondent submitted that the applicants’ allegation of improper purpose was based on Amendment VC115 being targeted at them, that is, at specifically depriving them of the beneficial use of their land. However, the Amendment could not be regarded as ad hominem because it was not specifically directed to the applicant parties. It was directed to any privately owned land in the PCRZ. Indeed, the February briefing outlined some options for planning responses and specifically recommended against site-specific controls.
Further, the respondent submitted, Amendment VC115 did not confer entitlement to public access or convert private land into public beach. The applicants can freely use the land, subject to the planning controls that are in place, and they can also exclude use by any member of the public by asserting their proprietary rights of exclusive possession. Nothing in the planning controls prevents any of that. However, like other privately owned land, the beach land has to be used or developed subject to applicable planning controls and those controls are largely contained, in this instance, in the PCRZ.
The respondent submitted that the judge below did not disregard statements made by the Minister at the time. Those statements were clearly and directly addressed in the primary judge’s reasons for judgment, but it was open to her Honour to give limited weight to the reported statements for the reasons that her Honour gave, namely, that they were made some time prior to the Amendment Decision and preceded the receipt of departmental advice and briefings in relation to the need to amend the VPPs. Moreover, they were not firsthand statements and were not necessarily a complete record of what the Planning Minister may have said to the relevant journalist. As a result, the statements reported in the media do not provide some kind of overriding source from which the Court could find that there was an underlying purpose that was not then displaced by the subsequent briefings and decisions. The respondent further submitted that the primary judge was entitled to have regard to the reasons for Amendment VC115 articulated in the briefings and formal documents, including the Explanatory Report and the reasons for the Exemption Decision.

Discussion

When an allegation of improper purpose is raised, it is for the tribunal of fact to determine the actual purpose which motivated the repository of the power. This is an inquiry into the ‘operative subjective purpose’ of the decision-maker.[36] It is not necessary that the alleged improper purpose be shown to have been the sole purpose for the exercise of power. It is sufficient if the purpose was ‘a substantial purpose’, in the sense that no attempt would have been made to exercise the power but for the desire to achieve the improper purpose.[37] However, an allegation of improper purpose is serious and should not be lightly inferred.[38]
[36]Galloway [2017] VSCA 120, [195] (Maxwell P, Redlich and Beach JJA).
[37]Ibid [196].
[38]Industrial Equity Ltd v Deputy Commissioner of Taxation (1990) 170 CLR 649, 672 (Gaudron J); [1990] HCA 46; Maddingley Brown Coal Pty Ltd v Environment Protection Authority (2013) 197 LGERA 259, 287 [91] (Kyrou J); [2013] VSC 582.
The improper or extraneous purpose alleged by the applicants was the purpose of ‘specifically’ depriving them of the beneficial use of the beach land by preventing its use or development unless the Crown agreed to the making of a permit application. They allege that the purpose of Amendment VC115 was to ensure continued public access to the beach land and keep it, effectively, under government control.
Certainly, the amendments to the Planning Scheme brought about by Amendment VC115 had the effect of requiring the applicants to obtain a permit if they wished to fence the beach land or carry out minor works of a kind that would not ordinarily require a permit (such as the construction of barbecue facilities). Moreover, if they wish to apply to the Council for a planning permit to carry out such works, the applicants must first obtain the consent of the Secretary. That these amendments were prompted by the adjustment to the Fox titles is tolerably clear. The adjustments alerted the Planning Minister (via the Climate Minister) to the anomalous, and potentially problematic, nature of the ambulatory titles, which encroached onto land that had, up to that point in time, been managed as public land.
These matters do not, in and of themselves, reveal the Planning Minister’s purpose in making Amendment VC115 to be improper. At the heart of the present dispute is how the Minister’s operative subjective purpose is to be discerned. The applicants rely on the statements made to the media both before and after the Amendment Decision; the respondent points to the rationale for Amendment VC115 outlined in the Ministerial briefings and the explanatory documents for the Amendment.
The February 2014 statements reported in various media outlets, and said by the applicants to be the primary evidence of the Planning Minister’s ‘operative subjective intention’ in making Amendment VC115, included, among other things, reference to the loss of ‘hundreds of square metres of public beach’ giving rise to a situation where the Registrar had ‘questions to answer’.[39] They referred to the need for the government to intervene to clarify titles and to the fact that the government was not going to subject the people of Victoria to a loss of beach access ‘simply because of a 1900s definition’. The Minister is further recorded as stating that the situation was ‘clearly something the government is not happy about’ and that it did not want to see public beach lost in private hands.
[39]See Reasons, [76].
As the applicants submit, these statements suggest that the Minister’s motivating purpose was to ensure that the Point King Beach remained accessible to the public and to prevent the applicants’ enjoyment of the beach land as its rightful owners.
On the other hand, it is uncontroversial that the controls introduced by Amendment VC115 affect all land within the PCRZ that is privately held. The purposes of the PCRZ include the preservation of land for public use and conservation of the natural environment. They are expressed in cl 36.03 as follows:
To implement the Municipal Planning Strategy and the Planning Policy Framework.
To protect and conserve the natural environment and natural processes for their historic, scientific, landscape, habitat or cultural values.
To provide facilities which assist in public education and interpretation of the natural environment with minimal degradation of the natural environment or natural processes.
To provide for appropriate resource based uses.
These are not purposes conventionally supporting controls over privately owned land — they are quintessentially public purposes. Controls under the PCRZ reflecting these purposes were in place well before the adjustment of the Fox titles. Hence, for example, an application for a permit to use or develop land within the PCRZ required the consent of the relevant public land manager.
It was against this background that the Planning Minister was advised to adopt and approve Amendment VC115. The Minister was advised, and accepted, that the controls in the Amendment were necessary having regard to the purposes of the PCRZ. So much is reflected in the departmental documents and the formal explanations accompanying the Exemption and Amendment Decisions. It is also reflected in the April media release, where the Planning Minister is quoted as saying:
This reform is important to ensure that areas for public conservation are subject to public oversight, ensuring their enjoyment by future generations of Victorians.
This change to the PCR zone will ensure proper management of beaches. It will prevent inappropriate development and construction from occurring. Beaches will remain accessible for everyone in this state — as they should be.
It is clear from the departmental documents that the amendment of the Fox titles prompted the government to identify a broader issue affecting a particular category of land, namely, private land that (anomalously) fell within the PCRZ. The concern about the ongoing management of this category of land is evidenced in the correspondence between the Planning Minister and the Climate Minister in the briefings that were prepared for the Minister in relation to the Amendment, and in the Explanatory Report, the Planning Minister’s reasons for the Exemption Decision and the April media release.
The applicants placed considerable reliance on the April media release to support their argument that the Minister’s decision was actuated by an improper purpose. However, as noted above, the improper purpose as alleged by the applicants was one said to ‘specifically’ target the Fox parties. The April media release does not support an inference that the Minister was singling out the Fox parties. To the contrary, the April media release speaks in general terms about beaches and private property within the PCRZ. It is entirely consistent with a general concern about the use and development of private land in the PCRZ. The fact that only a small number of land titles appear to have been relevantly affected by the doctrine of accretion does not alter that conclusion.
In our view, the applicants’ submission that it is not possible to infer a decision-maker’s purpose by reference to a briefing note or departmental memorandum is misconceived in the present context. The question in the present case was whether the applicants had discharged their onus of proving an improper purpose; that did not require the Minister to prove, or the judge to be positively satisfied, that the Minister had a proper purpose. The cases upon which the applicants relied concerned situations where it was impermissible to infer from briefing notes or departmental memoranda that a decision-maker had an improper purpose. In the present case, where the applicants relied on media statements made before the decision in question to discharge their onus of proving an improper purpose, the briefing notes are relevant because they demonstrate that, after various statements had been made, further information and advice was provided to the Minister. In our view, the briefing notes can be relied upon to rebut the allegation of improper purpose said to arise from the earlier statements. The authorities to which the applicants referred do not preclude the use of briefing notes in that way. A decision-maker’s subjective purpose is to be considered in light of various objective factors, including ‘the nature of the decision, the circumstances in which it was made and its effect’.[40] The briefing notes and explanatory documents form part of the objective factors that are relevant to determining whether the Minister acted improperly as alleged.
[40]Mandurah Enterprises Pty Ltd v Western Australian Planning Commission (2008) 38 WAR 276, 289–90 [66]–[67] (McLure JA, Buss JA agreeing at 301 [127]); [2008] WASCA 211.
In the Climate Minister’s letter to the Planning Minister dated 21 February 2014, he observed that the ‘Point King beach case’, that is, the updating of the seaward boundaries of the Fox land, had highlighted that there are a number of areas across Victoria where the policy intent to facilitate public access to beaches and the coastal policy expressed in the Victorian Coastal Strategies might not be realised, due to a small number of land titles with boundaries to the high water mark that were established before the reservation of coastal land for public purposes in the late 1800s. The Climate Minister stated that he had asked the Department of Environment and Primary Industries to investigate a long-term strategic approach to address this issue but that, until this work was completed, he required the advice of the Planning Minister as to the appropriate planning controls regarding the use and development of Point King Beach, ‘including across the seven titles that back on to the beach and also along the various beaches that adjoin some 45 further titles with property boundaries along the high water mark on the eastern side of Port Phillip Bay’.
The Climate Minister’s concern was clearly directed to the anomalous nature of the titles which straddled (or might straddle) land zoned for public use and conservation and extended to many more properties than the Fox land. Although the actions that followed were prompted by the adjustments to the Fox titles, they were not targeted specifically at the applicants and their enjoyment of the beach land. The concern was a more general one.
The response from the Planning Minister dated 28 March 2014 confirmed that he had been asked for advice on the appropriate planning controls regarding the use and development of land along Point King Beach ‘and other areas that may have similar title issues’. The recent title changes to the Fox land and the Climate Minister’s advice regarding further properties with similar ambulatory titles was said to raise a range of issues relating to the use and development of what was effectively private land within the PCRZ. The issues identified were orthodox planning considerations, such as the establishment of appropriate notification and consent processes under the PCRZ, the impacts on adjacent Crown land of any use and development applications in the PCRZ, and the appropriateness of maintaining the PCRZ for similarly titled properties.
The Planning Minister expressed the view that maintaining the PCRZ over land where ambulatory titles extended property boundaries into the PCRZ remained appropriate in order to protect the underlying environmental and social values relevant to the land, which is effectively the beach. He described the proposed amendments to the PCRZ as ‘[maintaining] existing processes supporting the management of Crown land’.
Again, these are concerns that transcend any issues surrounding access to the beach land and, indeed, the issue of ongoing public access to beaches.
The February and March briefings also provide objective evidence of what the Minister intended in preparing, adopting and approving Amendment VC115.[41]
[41]We note for completeness that we reject the applicants’ submission that the trial judge had ‘misinterpreted the key timelines’ by focusing on the time at which the Planning Minister made his final decision to adopt and approve Amendment VC115 on 28 March 2014, and that the relevant date of the decision was 7 March 2014, when the Planning Minister, in response to the brief dated 24 February 2014, approved ‘Option 1’ as the preferred approach to control land use and development on private land within the PCRZ. The relevant time for consideration of the Planning Minister’s purpose was the time at which he made the final decision, not the time at which he agreed to the preparation of an amendment to the planning scheme. However, even if the relevant time was 7 March 2014, we would not have been persuaded that as of that date the Planning Minister had the improper purpose for which the applicants contended.
The February briefing presented for the Minister’s consideration several options, including ‘Option 1’, which involved an amendment to the PCRZ to clarify the application of cl 62.02–2 and to require the consent of the Secretary for any application to use or develop land in the PCRZ where there is no public land manager. The briefing recommended the adoption of Option 1. In substance, Amendment VC115 reflected Option 1. Among other things, the February briefing explained that the proposed amendments would have the benefit of ‘strengthening the PCRZ’ to require a permit for all use, building or works for the beach land and that it would apply to all other potential situations where similar titles existed. This approach had ‘broad application’ and did not seek to single out individual sites. It was proposed as an ‘appropriate planning response while longer term legal options around property title and ownership matters are investigated further’.
The March briefing, which attached and recommended the preparation, adoption and approval of Amendment VC115, proposed amendments to the VPPs and relevant planning schemes to clarify the permit requirements and notification requirements raised by ‘the recent extension of private property titles onto land within the Public Conservation and Resource Zone (PCRZ)’.
It is plain that the Planning Minister was prompted by the briefings to consider amendments to the PCRZ as a response to a broader issue that arose as a result of ambulatory titles emerging as a challenge to the management of land in the PCRZ.
A further briefing note, prepared by the Department for the Planning Minister in anticipation of his meeting with the Climate Minister on 4 February 2014, reinforced the general nature of the concern sought to be addressed. It informed the Planning Minister that coastal properties with ambulatory boundaries existed along other parts of the coast (Port Bellarine, Port Fairy, Portland and Port Welshpool). The Department of Environment and Primary Industries was clarifying the number and location of such properties and had developed a table of options for addressing the issues raised by these historical titles. It informed the Planning Minister that the PCRZ was predominantly applied to public land, with its primary purpose being to ensure use and development is consistent with the intent of the public purpose of the land. The briefing note also records that, since its introduction in 1996, the Victorian Coastal Strategy has supported the priority need to maintain and enhance public access to the beach for all Victorians, supporting limited coastal dependent use and development only in key locations and only where a broader public benefit could be demonstrated. The briefing note also confirmed that the Registrar’s decision did not result in any loss of public land, nor the transfer of any public land into private ownership.

Again, the focus is on the broader objective of ensuring that land in the PCRZ is used and developed consistently with the purposes of the PCRZ and of encouraging the use and development of coastal land in accordance with the Victorian Coastal Strategy. The Explanatory Report and the reasons for the Exemption Decision reflect this broad policy focus. The benefits of Amendment VC115 are said to include clarification for all relevant planning and responsible authorities to support informed decision making that takes into account the Crown’s views and/or interests relating to areas where no public land manager exists.
In our view, the primary judge was correct to consider the media reports of the Planning Minister’s remarks in the context of the evidence as a whole regarding the Planning Minister’s exercise of his planning responsibilities in dealing with the use and development of private land in the PCRZ.
We are not persuaded that the primary judge disregarded statements and comments made by the Planning Minister or that she failed to undertake the correct analytical exercise by focussing upon the effect of Amendment VC115 rather than the purpose that the Planning Minister had in making and approving the Amendment. In our view, the primary judge was correct to have regard to the briefings and formal documentation as well as the media reports when seeking to determine whether the Planning Minister’s operative subjective purpose in making Amendment VC115 was an improper one. However, we see no error in the primary judge’s finding that the statements attributed to the Planning Minister by the media in mid-February 2014 were of limited utility in discerning his purpose in making the Amendment Decision on 28 March 2014. In early to mid-February, the government was reportedly considering a range of possible responses to the issues raised by the adjustment of the title boundaries of the Fox land and the implications for other coastal land with ambulatory tidal boundaries that might be in a similar position. The legitimate planning concerns that arose from the inclusion of private land in the PCRZ supplanted the Minister’s initial reactions to the adjustment to the Fox titles and its possible impact on public access to Point King Beach.
The fact that Amendment VC115 may have been prompted by the Registrar’s decision to amend the title boundaries of the Fox land does not establish that the Amendment was specifically directed to the applicants or that the Amendment Decision was made for any improper purpose. The fact that a particular event provides an impetus for a planning decision does not mean the decision was not made for a proper planning purpose. It is not to the point to hypothesise that Amendment VC115 would not have been made had the title boundaries to the Fox land not been corrected. The Amendment, the Planning Minister was told (and accepted), supported the objectives and strategies of the State Planning Policy Framework, in particular Clause 12 ‘Environmental and landscape values’, by ensuring that consideration of all matters relevant to land in the PCRZ were considered and the Crown was able to provide advice, guidance and its consent to appropriate use and development of land. Moreover, the Planning Minister was told (and apparently accepted) that Amendment VC115 would generate positive environmental, social and economic benefits by ensuring that the views of the Secretary, on behalf of the Crown, were considered and applied for any proposed use and development of land under the PCRZ where no public land manager has been declared.
Finally, we observe that the applicants retreated from the position agitated at trial that Amendment VC115 conferred ‘an absolute and unreviewable power of veto’ on the State (through the Secretary). Accordingly, the applicants could not rely upon an absolute and unreviewable power of veto to support their argument that an inference should be drawn that the Amendment Decision was made for the purpose of depriving the applicants of the beneficial use of the beach land. The mere fact that a planning permit application requires the consent of the Secretary does not support such an inference either, as the requirement represents a reasonable planning response for the reasons canvassed under Ground 2.
Ground 1 is not made out.

Ground 2 – The primary judge erred in her construction of the Secretary’s consent power

The holdings of the primary judge

In the proceeding below, the applicants challenged the Amendment Decision on the basis that it impermissibly conferred power on the Secretary to veto any use or development of the beach land. They argued that it was beyond the power in s 6 of the Planning Act for a planning scheme to confer on a person, such as the Secretary, the power to give or withhold consent to a permit application. The framework of the Planning Act provides for powers of this kind to be conferred on a responsible authority or a referral authority, and to be exercised within the framework provided by the Planning Act, including being subject to merits review by the Tribunal. The applicants submitted that the conferral on the Secretary of what they described as an ‘unreviewable power’ was inconsistent with, and repugnant, to the Planning Act.[42]
[42]Reasons, [101].
The primary judge concluded that the Secretary’s power to refuse to provide written consent to the making of a permit application is a narrow one that can only be exercised in limited circumstances. She did not accept the applicants’ submission that it was an unconfined power, to be exercised by reference to the Secretary’s view of the substantive planning merits of the application. Nor did she accept the characterisation of the consent requirement as an unreviewable power to block an application for a permit to use or develop private land in the PCRZ. Her Honour held that a decision of the Secretary to refuse to provide the consent required by cl 36.03–3 is subject to merits review by the Tribunal pursuant to s 149 of the Planning Act.[43]
[43]Ibid [113]–[114].
It is not now in dispute that the Secretary’s decision to withhold consent is reviewable under s 149 of the Planning Act or by way of judicial review.
Further, the primary judge did not accept that the consent requirement was repugnant to the Planning Act. Before Amendment VC115, cl 36.03–3 already required the written consent of the relevant public land manager for a permit application made by someone else. Amendment VC115 supplemented the existing consent requirement for permit applications where there is no public land manager. Her Honour held that the requirement for the Secretary’s consent in cl 36.03–3 is valid.[44]

Applicants’ submissions

[44]Ibid [115], [117].

The applicants submitted that the primary judge erred in her conclusion that the conferral of the consent power upon the Secretary is not antithetical or repugnant to the Planning Act, and argued that the judge ought to have held that the consent power, given its wide ambit, was an unlawful constraint upon the making of an application for a permit in respect of private land. According to the applicants, the primary judge was wrong to distinguish Shire of Sherbrooke v Aitken[45] and Shire of Sherbrooke v F L Byrne Pty Ltd (together, the ‘Shire of Sherbrooke cases’).[46]
[45][1981] VR 873.
[46][1987] VR 353.
The applicants submitted that the primary judge’s holding as to the ambit of the Secretary’s power to consent in cl 36.03–3 does not accord with the text by which that power is conferred or with the orthodox principles of statutory construction, which required the judge to construe the ambit of the Secretary’s power by reference to the text, context and purpose of cl 36.03–3. The primary judge did not elaborate or explain the limited circumstances in which the Secretary could validly decline consent. Instead, she appeared to reason that the Secretary’s power must be narrow because it must be exercised reasonably. However, it is not permissible to divert attention from the words in a statute by the adoption of a gloss.
In any event, so it was submitted, the consequence that a statutory power is to be exercised reasonably is not necessarily that the statutory power is narrow in its ambit. In the present case, the standard of reasonableness attaching to the Secretary’s exercise of power under cl 36.03–3 has to be assessed in context: the power is not expressed to be subject to any limitation and the discretion to exercise it is unconstrained. The practical consequence is not to narrow the ambit of the Secretary’s power, but rather to confine the circumstances in which the Secretary’s exercise of that power will be unreasonable.
The applicants submitted that the primary judge’s conclusion that the ambit of the Secretary’s power is narrow cannot be reconciled with the extrinsic materials that may be thought to inform the context and purpose of the power. The briefing materials to the Minister, for example, record that it was intended that, in considering whether to provide consent, the Secretary would be expected to consider the consistency of any permit application with strategic documents and the public interest. The Explanatory Report records that the purpose of cl 36.03–3 is to enable the interest of the Crown to be taken into consideration. These materials, the applicants submit, militate against the conclusion that the power in cl 36.03–3 is a narrow one that may only be exercised in limited circumstances. Further, it does not follow from the availability of merits review that the consent requirement may be included in a planning scheme, especially having regard to the scheme of the Planning Act in relation to permits.
The applicants also submitted that the imposition of a consent requirement for an application for a planning permit was inconsistent with the Planning Act considered as a whole. The applicants relied in particular on pt 4 and ss 47–48 of the Act, which, they said, leave no room for a planning scheme to include a requirement for the consent of another person as a precondition for the making of an application for a planning permit. Thus, although the Planning Act contains no express prohibition on a consent requirement of the kind in question, it impliedly prohibits a requirement of that kind. In that regard, the applicants relied on the Shire of Sherbrooke cases. The applicants pressed this argument even if the power in cl 36.03–3 were to be construed narrowly, albeit they also submitted that the breadth of the power underscored the inconsistency of the provision to the scheme of the Planning Act.

Respondent’s submissions

The respondent submitted that on its proper construction, cl 36.03–3 does not enable the Secretary to withhold consent for reasons associated with a substantive objection to the proposed use or development. That conclusion, the respondent submitted, follows from the text, which distinguishes quite clearly between consent to the permit application being made and consent to the proposed use or development. The respondent submitted that the primary judge was right to read the power narrowly and subject to merits review, which removes any potential clash or repugnancy with the Planning Act, because it is not an example of the interposition of a requirement which is designed to take the matter outside the scope of pt 4 of the Planning Act so that one has an unreviewable power to prevent a permit application being made in place of an application for a permit, the decision in relation to which is subject to review.
According to the respondent, the availability of judicial review (imposing legal constraints on the exercise of the consent power) and merits review (allowing reconsideration of the factual merits of any refusal of consent) means that the consent requirement can sit comfortably as an application requirement consistently with pt 4 of the Planning Act, and with the scheme of review in the Planning Act. It does not involve an interposed step which is foreign to that scheme. This, the respondent submitted, distinguishes this case from the circumstances considered in the Shire of Sherbrooke cases.
The respondent submitted further that if the consent requirement was not effectively extended from the form under the pre-existing cl 36.03–3, a permit application could simply be made to the responsible authority and there would not necessarily be an opportunity for the Crown, which would ordinarily be the public land manager, to make submissions and put its views to the responsible authority for consideration when dealing with the application. The Explanatory Report illustrates the Crown’s interest in the management of land in the PCRZ, referring to a range of matters, such as bushfire risk, which involve strategic policies to do with coastal land which would ordinarily be considered by the public land manager.
According to the respondent, the process contemplated by the zone controls for the use or development of private land in the PCRZ is as follows:
(a)the proponent must apply to the Secretary for written consent before making the permit application;
(b)the Secretary must then decide whether or not to consent to the permit application; and
(c)if the application is in proper form and contains all necessary information, the fact that the Secretary considers that permission for the use or development should be subject to conditions, or that the use or development should not be permitted at all, is not a reason to refuse to consent to the permit application; but
(d)the withholding of consent would enable to Secretary to require all necessary information to be provided to the decision-maker, which would in turn enable the Secretary to present his or her views on the merits of the proposal to that decision-maker.

Discussion

Clause 36.03–3 of the Planning Scheme controls use and development in the PCRZ and is in the following terms:
An application for a permit by a person other than the relevant public land manager must be accompanied by the written consent of the public land manager, indicating that the public land manager consents generally or conditionally either:
·To the application for permit being made.
·To the application for permit being made and to the proposed use or development.
Where there is no public land manager, an application for a permit must be accompanied by the written consent of the Secretary to the Department of Environment, Land, Water and Planning.
As the respondent submitted, cl 36.03–3 applies to the process for making an application for a permit for the use or development of land in the PCRZ. It requires an applicant for a permit to obtain the public land manager’s consent to the making of a permit application; it does not require that the applicant obtain consent to the use or development proposed. Insofar as cl 36.03–3 refers to consent ‘to the proposed use and development’, it does not require such consent to be obtained before an application can be made. Rather, it enables the public land manager or the Secretary (as the case may be) to indicate such consent at the same time as giving consent to the making of the application.
This carries the clear implication that consent to the making of the permit application is not to be withheld on the ground that the public land manager or the Secretary opposes the proposed use or development. Clause 36.03–3 is directed to the adequacy of the permit application, having regard to the objects and purposes of the PCRZ, not to the planning merits of the proposed use or development. It is not putting a ‘gloss’ on the language of cl 36.03–3 to so hold.
Nor do we accept the applicants’ submission that the consent requirement is inconsistent with the Planning Act as a whole, pt 4 of the Act, or ss 47 and 48 specifically. We do not consider that any implication arises from any of the provisions of the Act that precludes a requirement in a planning scheme that an applicant obtain the consent of the Secretary before making an application for a planning permit. In particular, we do not consider that ss 47 and 48 have that effect.
Section 47 provides for the form of an application for a permit, and makes provision for information that must accompany an application. However, it would not be correct to infer from the requirements of s 47 that a planning scheme cannot impose additional requirements as to what must accompany a permit application. Section 6(2)(hb) of the Planning Act provides that a planning scheme may set out different procedures for particular classes of applications for permits.[47] Accordingly, s 47 does not provide an exhaustive list of what must accompany an application for a planning permit. Nor does s 48 have that effect — it deals with circumstances where the applicant for the permit is not the owner of the land; there is no implication derived from that section in relation to what might be required where the applicant for the permit is the owner of the land.
[47]There are numerous examples of application requirements in the VPPs in addition to what is required by s 47: cl 52.32 (Wind Energy Facility); cl 52.15 (Heliport and Helicopter Landing Site); cl 52.08 (Earth and Energy Resources Industry).
In our opinion the consent requirement in cl 36.03–3 is to be distinguished from the impermissible ‘interpositions’ considered in the Shire of Sherbrooke cases. In Shire of Sherbrooke v Aitken, the planning scheme provided that the responsible authority could permit certain subdivisions if it was ‘satisfied by prior resolution that the grant of a permit would not prejudice the objective of orderly and proper planning of the area in which the land is situate and that special circumstances exist which warrant the grant of a permit’.[48] In Shire of Sherbrooke v FL Byrne Pty Ltd, the relevant requirement was held to be invalid to the extent that it purported to prohibit the grant of a planning permit until a development plan was promulgated.[49] These were not application requirements, but impediments to the process of having a permit application considered and determined by the responsible authority. They purported to allow the responsible authority to decline to carry out the function reposed in it by the statute, namely, to determine whether or not to grant a permit having regard to the planning merits of the application.
[48][1981] VR 873, 874 (Gobbo J).
[49][1987] VR 353, 365 (Southwell J).
In our view, cl 36.03–3 has the narrow application identified by the primary judge. It is not a broad-ranging power to block a proposed use or development of land in the PCRZ. The consent requirement relates to the adequacy of the permit application so as to enable the public land manager or the Secretary (as the case may be) to ensure that the responsible authority is in a position to consider all relevant matters relating to the proposed use or development of the land in the PCRZ. The assessment of the planning merits of a permit application remains a matter for the responsible authority and any referral authority specified in the planning scheme.
Furthermore, any decision to withhold consent is, as the applicants conceded, both judicially reviewable and reviewable on the merits under s 149 of the Planning Act. Moreover, as the primary judge observed, the amendment supplemented an existing consent requirement for permit applications where there is no public land manager. There has been no challenge to the validity of the requirement for the consent of the public land manager.
It follows that cl 36.03–3 is not repugnant to the Planning Act. It satisfies the test in s 6(1) of the Planning Act as ‘a provision which relates to the use, development, protection or conservation of any land in an area’.
It is true that the requirement for the consent of the Secretary applies to an application for a permit to develop private land, and it is unusual for the consent of the Crown to be required for an application to develop private land. However, the private land in question is located in what is essentially a public use zone. Amendment VC115 did not place the beach land in that zone — the beach land was already in the PCRZ at the time Amendment VC115 was approved and gazetted.

Ground 2 is not made out.

Notice of contention

The respondent filed a notice of contention pursuant to r 54.32 of the Supreme Court (General Civil Procedure Rules in which it argued that this Court should exercise its discretion to refuse relief due to the applicants’ delay in commencing the proceeding. In light of our conclusion that neither of the applicants’ proposed grounds of appeal are made out, it is unnecessary to consider the notice of contention.
We pause to observe for completeness, however, that in bringing the proceeding the applicants sought to challenge the lawfulness of administrative decisions made some six years earlier that effected the amendment of the VPPs and every planning scheme in Victoria. The amendments affected land across Victoria. It is contrary to the public interest for decisions forming part of the process by which a planning scheme amendment is made to be challenged so many years after the amendment has come into force. While there may still be a dispute to quell between the applicants and the Planning Minister, in the sense that the applicants continue to feel they have been singled out and treated unfairly as a result of the Amendment Decision, that dispute could and should have been raised for resolution well before now. Had it been necessary for us to determine the notice of contention, we would have upheld it, and exercised our discretion to refuse relief.

Disposition

Neither proposed ground of appeal is made out. Leave to appeal will be granted but the appeal will be dismissed.
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SCHEDULE OF PARTIES

W EVERTON PARK PTY LTD (ACN 067 891 829)	First Applicant
LINDSAY FOX	Second Applicant
PAULA FOX	Third Applicant
and
MINISTER FOR PLANNING	Respondent

2.	Exemption of amendment	exempt myself from the requirements of sections 17, 18 and 19 of the Act and the regulations in accordance with section 20(4) of the Act because the interests of Victoria make such an exemption appropriate; and
3.	Adoption of amendment	adopt the amendment without changes in accordance with section 29 of the Act; and
4.	Approval of amendment	approve the amendment without changes in accordance with section 4C of the Act.

[2022] VSCA 243

8 November 2022