Applicant v First Respondent

Planning and Environment Act 1987 (Vic), ss 1, 3, 4, 6, 8, 8A, 8B, 9, 12, 13, 14, 14A, 47, 55, 56, 60, 61, 62, 77, 79, 80, 84A, 84B, 84AB, 85, 98, 99, 100, 102, 103, 104, 104A, 105, 106, 107, 108, 109, 110, 111 and 112.

Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 4, 51, 67, 75, 98, 116, 117, 124, 130, 148, and Sch 1.

Land Acquisition and Compensation Act 1986 (Vic), Parts 3, 10 and 11.

Transport Integration Act 2010 (Vic), ss 64A and 64B.

Introduction and overview: a statutory authority challenges a decision of VCAT in a complex matter relating to land planning and compensation

1 A statutory authority of the Victorian Government challenges, under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('the VCAT Act'), a decision and order made by the Victorian Civil and Administrative Tribunal ('VCAT') on 11 May 2022 in its Planning and Environment List.[1] VCAT's decision and order disposed of four related applications for review that had been brought by Mr John Kilpatrick, a landholder who is now the first respondent in this Court.

2 Previously, in 2020, Mr Kilpatrick had begun to take steps towards claiming financial compensation under the Planning and Environment Act 1987 (Vic) ('the PEA') for the existence of a planning reservation for a freeway and railway corridor over certain parts of his land. A predecessor of the statutory authority had brought about the inclusion of the reservation for the freeway and railway corridor in the applicable planning scheme. What Mr Kilpatrick had in mind was to make, in due course, a claim for compensation under the PEA for a species of what is sometimes called 'planning blight'.[2] Mr Kilpatrick's first step was to make 'test' or 'token' applications, under Part 4 of the PEA, to Wyndham City Council ('the Council') (now the second respondent in this Court) for planning permits to build four substantial residences within the relevant reserved parts of his land. Mr Kilpatrick was hoping, and expecting, that the Council, after a compulsory referral of the matter to the statutory authority, would refuse to grant the permits on the ground that the land 'is or may be required for a public purpose' within the meaning and for the purposes of the PEA. Such refusals would have 'triggered'[3] an entitlement in Mr Kilpatrick to claim financial compensation under the PEA in due course; and the statutory authority would have been liable to pay any such compensation found to be due. Prior to 2020, Mr Kilpatrick had already made two successful claims for compensation against the statutory authority by following a corresponding path. Those claims had related to other parts of his land affected by the same freeway and railway reservation.

3 Under the PEA, there is an alternative path towards compensation for 'planning blight', being a path that requires the landowner to sell the relevant land. Mr Kilpatrick was farming his land, and did not wish to sell any part of it.

4 Mr Kilpatrick's permit applications were referred by the Council to the statutory authority pursuant to the PEA. The statutory authority did not wholly object to the grant of the permits. Rather, it purported to direct the Council to impose, on any permits granted, conditions requiring, most relevantly, that the residences be constructed on parts of Mr Kilpatrick's land outside the reservation for the transport corridor. Had matters rested there, Mr Kilpatrick's ability to make his intended claim for compensation (without sale) under the relevant provisions of the PEA would not have been 'triggered'.

5 Mr Kilpatrick then made applications to VCAT to review the conditions, pursuant to the PEA and the VCAT Act (operating together). Again, these were test or token applications. Mr Kilpatrick urged VCAT to 'disallow' his applications for review, and to do so on the abovementioned ground that the relevant land 'is or may be required for a public purpose' ('the public purpose ground'). Mr Kilpatrick considered that this would provide an alternative 'trigger' for the compensation claim that he wished to make in due course. Again, the statutory authority would have been the body liable ultimately for any compensation found to be due. However, following a last minute change of its position, the statutory authority contended at VCAT that Mr Kilpatrick's applications for review should be 'allowed' rather than disallowed. It contended that the existing conditions, which the statutory authority itself had originally purported to require, should be removed. Had VCAT accepted that contention, Mr Kilpatrick's intended claim for compensation (without sale) would have remained untriggered.

6 However, VCAT did not accept the statutory authority's contention. Rather, VCAT was persuaded by Mr Kilpatrick to 'disallow' his applications for review and to do so on the public purpose ground. VCAT made its decision and order accordingly. That is what the statutory authority now challenges in this Court. Presumably, it does so because it wishes to escape being exposed to Mr Kilpatrick's (latest) intended claim for compensation. Otherwise, the statutory authority may have no standing to bring this challenge.[4]

7 A challenge under s 148 of the VCAT Act to a decision of VCAT is brought by way of an application for leave to appeal, and, if leave is granted, an appeal on a question or questions of law (only). Procedurally, such a challenge is commenced by filing and serving a notice of appeal. Leave to appeal is discretionary and cannot be given unless the Court is satisfied that the proposed appeal has a 'real prospect' of success: s 148(2A). A 'real' prospect of success means "that the appeal has a 'real' as opposed to a 'fanciful' chance of success".[5] Even if leave to appeal is granted and an error of law is shown, the grant of any relief is discretionary.

8 In the present case, the proposed appeal has been heard together with the application for leave to appeal. The matter arises within an intricate legal and factual framework. The amended notice of appeal is complex and cryptic and studded with footnotes. Prior to the oral hearing in this Court, the statutory authority filed and served a lengthy, detailed outline of its submissions attacking VCAT's order and reasons and, later, a lengthy, detailed outline of its reply to the responsive written submissions that Mr Kilpatrick had filed and served in the meantime. The oral hearing in this Court took 2½ days, spread over a period of about six weeks. The statutory authority's attack on VCAT's decision must fail. A key feature of this case is that Mr Kilpatrick's applications to the Council for permits were of a test or token nature, and that his applications to VCAT for review were also of a test or token nature. Mr Kilpatrick's approach was lawful. Indeed, it accorded with a long established practice in this State based on a certain understanding of the operation and effect of the provisions of the PEA associated with the public purpose ground, being an understanding which is supported by Supreme Court authority and has become conventional.[6] In substance, VCAT adopted that understanding. There is no proposed ground of appeal attacking the availability to landholders of the test or token approach. At an early stage of the oral hearing before me, I put to senior counsel for the statutory authority that large parts of his case seemed to assume that test or token applications were illegitimate and that applications of that nature should be dealt with as though they were not of that nature. In response, he expressly acknowledged that he would need leave to further amend the amended notice of appeal to warrant an attack on the legitimacy and effectiveness of test or token applications and that he would need instructions before applying for such leave.[7] After obtaining instructions, he expressly declined to seek such leave.[8] On the other hand, in a self-contradictory fashion, the statutory authority still persists with all of its original arguments in this Court, including all those arguments which assume, wrongly, that test or token applications are illegitimate or ineffective, or should be dealt with as though they were not of a test or token nature. This is a major weakness in the statutory authority's case.

9 Further, whereas VCAT was (appropriately) satisfied that the manner in which Mr Kilpatrick advanced his applications to VCAT was legitimate, VCAT said that it did not accept that the statutory authority had come to VCAT with 'clean hands'.[9] This was not so much a reference to the equitable doctrine of 'clean hands',[10] but rather a summary description by VCAT of a finding that it made to the effect that the statutory authority had carried out its statutory role in relation to Mr Kilpatrick's applications to the Council for planning permits otherwise than in good faith and had put to VCAT a position that it had arrived at otherwise than in good faith. In short, VCAT found in effect that the statutory authority's actions were motivated by a rigid determination to avoid paying further statutory compensation to Mr Kilpatrick for planning blight. There is no challenge, or at least no proper challenge,[11] by the statutory authority to VCAT's finding that the statutory authority lacked 'clean hands', except that the statutory authority contends, wrongly, that the finding was irrelevant.

10 There are various proposed grounds, sub-grounds and particulars of appeal in the amended notice of appeal. In brief summary, the statutory authority asserts:

(a) that VCAT had only review jurisdiction in this matter, but wrongly purported to exercise original jurisdiction that had not been invoked and that it did not have;

(b) that VCAT's decision and order was of a kind not available to it in either its review jurisdiction or in its original jurisdiction;

(c) that VCAT omitted to carry out steps that it was required to carry out in the proper exercise of any review jurisdiction available to it;

(d) that VCAT failed to take into account certain considerations that it was obliged to take into account in the proper exercise of any such review jurisdiction;

(e) that certain findings reached by VCAT were not open to VCAT in the circumstances;

(f) that VCAT took into account an allegedly irrelevant matter, namely that the statutory authority had not come to VCAT with 'clean hands'.[12]

11 Thus the statutory authority's attacks on VCAT's decision-making are quite broad-ranging. In addition, many of its arguments are convoluted or obscure. Nevertheless, as I have already indicated, insofar as the statutory authority's arguments involve implied attacks on the legitimacy or the effect of test or token applications, the statutory authority travels beyond its amended notice of appeal, and it contradicts itself. Further, the statutory authority, without acknowledging it, seeks in effect to depart in this Court from concessions that it made at VCAT. This includes concessions it made there as to the legitimacy and effect of test or token applications, as to the facts and as to the limited nature of the issues before VCAT. On analysis, the whole of the statutory authority's case in this Court has a very hollow ring. Nevertheless, at the oral hearing in this Court, immediately after expressly declining to seek leave to amend (as mentioned above), senior counsel for the statutory authority told me that his client sought my adjudication on 'each and every one' of the grounds in its amended notice of appeal.[13] Later, after considerable further testing of the statutory authority's arguments over almost two days, senior counsel for the statutory authority told me that he wished to be 'very clear' that his client 'relies upon its written submissions and its amended notice of appeal', and that his client 'does not in any way concede any matters that are contained in those written submissions and the amended notice of appeal'.[14] As a result, I have felt it necessary to describe VCAT's jurisdiction, functions and powers in some detail; to refer in some detail to the principles relating to appeals from VCAT to this Court; to explain the background to the dispute between the parties; to refer in detail to the relevant provisions of the PEA; to give a detailed, chronological account of what happened before and during the VCAT hearing (including an account of the evidentiary material that was before VCAT and a detailed, chronological account of the written and oral submissions that were made by the parties to VCAT); to refer in detail to VCAT's decision and reasons; to recount the parties' written submissions to this Court and to analyse them closely; and to deal at some length with a series of things that occurred during, or that emerged from, the oral hearing. Unfortunately this has necessitated a very long judgment, with a considerable amount of repetition. However, in relation to the headline assertions of the statutory authority as outlined above, I can summarise my conclusions as follows:

(a) that although it is true that VCAT had only review jurisdiction in this matter, VCAT was well aware of that and did not purport to exercise any original jurisdiction;

(b) that, in any event, VCAT's decision and order was of a kind available to it in the proper exercise of its review jurisdiction;

(c) that VCAT did not omit to take any steps required of it in the proper exercise of its review jurisdiction;

(d) that VCAT did not fail to take into account any obligatory considerations;

(e) that VCAT did not arrive at any findings that were not open to it in the circumstances; and

(f) that there was nothing irrelevant (or otherwise inappropriate) about VCAT's finding that the statutory authority had not come to VCAT with clean hands.

Even if VCAT did erroneously believe that it was exercising original jurisdiction rather than review jurisdiction, or made some other mistake about the source of its jurisdiction or powers, nevertheless, its decision and order would not necessarily have fallen to be set aside on that account. In fact, on established principles of public law,[15] the decision and order would not have failed on that account because, as I will later explain:

(a) VCAT did possess review jurisdiction;

(b) VCAT did have the power, in the exercise of that jurisdiction, to make the decision and order that it made; and

(c) VCAT did not fail to meet any statutory pre-conditions for doing so.

12 In VCAT's view, in respect of the issues that were actually joined between the parties at VCAT, the statutory authority failed on the facts and on the relevant discretionary considerations. Those considerations were essentially planning considerations connected with the compensation-related public purpose ground. VCAT's view was well open to it.

13 These conclusions are more than enough to defeat the proposed appeal. Indeed, it is enough to defeat the proposed appeal that the statutory authority has failed to satisfy me that VCAT in fact made the alleged errors of law. I would add that if, contrary to my view, VCAT's reasons for decision do reveal some misunderstanding of the relevant statutory provisions or other error of law, the statutory authority has failed to satisfy me that any such error was material to the outcome. VCAT's finding that the statutory authority lacked 'clean hands' duly supported VCAT's decision, and it is also a factor relevant to the question of whether leave to appeal should be granted or refused. It might also have been relevant to the matter of the Court's residual discretion to dismiss the appeal had the statutory authority been able to establish any of its proposed grounds of appeal, but that need not be decided.

14 Nevertheless, given that VCAT's reasons for decision could have been expressed more felicitously, and given the legal and factual complexity of this case, I accept that the prospects of success of the proposed appeal could be described as better than 'fanciful', albeit only barely. In those circumstances, and having regard to the contention by the statutory authority that this is a case of general importance, I will grant leave to appeal. However, the appeal will be dismissed.

VCAT generally, its jurisdictions and its main functions and powers

15 It is useful to recall some basic propositions about VCAT. It is a tribunal created by statute.[16] Its 'jurisdiction derives entirely from statute'.[17] It has only two types of jurisdiction: original jurisdiction and review jurisdiction.[18] VCAT 'does not possess general civil jurisdiction but only has original jurisdiction in respect of specific kinds of disputes and claims'.[19] VCAT 'does not have jurisdiction unless that jurisdiction is conferred on it by an 'enabling enactment'.[20] An 'enabling enactment' is an enactment (i.e. an Act or subordinate instrument) by or under which jurisdiction is conferred on VCAT.[21] VCAT's original jurisdiction is 'the jurisdiction of the Tribunal other than its review jurisdiction'.[22] So far as presently relevant, VCAT's original jurisdiction is invoked 'by a person who is entitled by or under an enabling enactment to do so applying to the Tribunal in accordance with s 67'.[23] In exercising its original jurisdiction, VCAT has the functions conferred on it by or under the enabling enactment, as well as any functions conferred on it by or under the VCAT Act or the regulations or the rules made under that Act.[24] VCAT's review jurisdiction is jurisdiction conferred on VCAT 'by or under an enabling enactment to review a decision made by a decision-maker'.[25] A 'decision-maker' is a person who makes, or is deemed to have made, a decision under an enabling enactment.[26] In s 4 of the VCAT Act, a very wide meaning is given to the concept of a person who 'makes a decision'. The concept extends to a person who 'imposes a condition'.[27] So far as presently relevant, VCAT's review jurisdiction is invoked where a person, being entitled to do so by or under an enabling enactment, applies to the Tribunal for review of a decision under that enactment, doing so in accordance with s 67 of the VCAT Act, or in any other way permitted or provided for by the enabling enactment.[28]

16 The identification of any relevant jurisdiction (original or review) of VCAT in a particular case is one thing.[29] The identification of the relevant powers (express or implied)[30] available to VCAT in the exercise of its relevant jurisdiction is another. The characterisation of steps taken (or not taken) by VCAT is yet another. Because there are issues in the present case about what VCAT had authority to do, and about what it actually did, it is desirable to have regard not only to the relevant provisions of the applicable 'enabling enactment' (here, the PEA) which I will come to in due course, but also, and first, to certain general provisions of the VCAT Act. In particular, regard should be had to s 51 of the VCAT Act, and also to ss 75, 76, 93, 98, 116, 117, 124 and 130 of that Act. Section 51 of the VCAT Act deals with the 'functions' of VCAT on review. The word 'function' is defined in s 3 of the VCAT Act to include 'jurisdiction, power, duty and authority'. Section 51 provides:

(1) In exercising its review jurisdiction in respect of a decision, the Tribunal -

(a) has all the functions of the decision-maker; and

(b) has any other functions conferred on the Tribunal by or under the enabling enactment; and

(c) has any functions conferred on the Tribunal by or under this Act, the regulations and the rules.

(2) In determining a proceeding for review of a decision the Tribunal may, by order -

(a) affirm the decision under review; or

(b) vary the decision under review; or

(c) set aside the decision under review and make another decision in substitution for it; or

(d) set aside the decision under review and remit the matter for re-consideration by the decision-maker in accordance with any directions or recommendations of the Tribunal.

(3) Subject to subsection (4), a decision of a decision-maker as affirmed or varied by the Tribunal, or a decision made by the Tribunal in substitution for the decision of a decision-maker -

(a) is deemed to be a decision of that decision-maker; and

(b) subject to any contrary order by the Tribunal, has, or is deemed to have had, effect from the time at which the decision under review has or had effect.

(4) Subsection (3)(a) does not apply for the purposes of -

(a) an application to the Tribunal for review of the decision; or

(b) an appeal under Part 5.

(5) If an applicant does not appear (personally or by representative) at the hearing of a proceeding for review of a decision, the Tribunal must confirm the decision.

Sections 75, 76, 93, 98, 116, 117, 124 and 130 of the VCAT Act apply in relation to both the review jurisdiction and the original jurisdiction of VCAT. Section 75 provides that VCAT may summarily dismiss or strike out a proceeding it considers to be frivolous, vexatious, misconceived, lacking in substance or an abuse of process. Section 76 authorises VCAT to dismiss a proceeding for want of prosecution. Under s 93, VCAT may dismiss a proceeding to give effect to a settlement between the parties. Section 98(1)(b) empowers VCAT to adopt the practices and procedures of courts of record. Under s 98(3), VCAT may regulate its own procedure. Section 116 provides that an order of VCAT must be in writing and must be authenticated in accordance with the VCAT Rules, and that copies of the order must be provided to the parties. Section 117 provides that VCAT must give reasons for any final order; that if VCAT gives written reasons, VCAT must include in those reasons its findings on material questions of fact; and, importantly for present purposes, that the reasons for an order, whether oral or written, form part of the order (see s 117(6)). Section 124 provides that VCAT may make a declaration concerning any matter in a proceeding instead of any orders it could make, or in addition to any orders it makes, in the proceeding; and that this power is in addition to, and does not limit, any power of VCAT under an enabling enactment to make a declaration. Section 130 provides that a power of VCAT to make an order or other decision includes a power to make the order subject to any conditions or further orders that VCAT thinks fit. Under s 130(2), such conditions or further orders may include an adjournment, an order for costs, a requirement to give notice or to give an undertaking, or, notably, 'a condition or order necessary or desirable to give effect to an order or other decision'.[31]

17 It is often said that, by virtue of provisions like s 51 of the VCAT Act (set out above), tribunals such as VCAT, when exercising their review jurisdiction, 'step into the shoes' of the original decision-maker and make a fresh or de novo decision on the same question or matter, but on the evidentiary material before the tribunal, as distinct from the evidentiary material that had been before the original decision-maker, and taking into account any relevant facts that may have occurred since the time of the original decision. That is usually true.[32] And, usually, the substantive law that applied to the making of the original decision, if that law be unamended, also applies to the review by the relevant tribunal of the original decision. On the other hand, those usual features of review tribunals are subject to any express or implied statutory provision to the contrary; and they may be affected by the nature or circumstances of the decision under review or by the nature of the case that the moving party in the tribunal wishes to advance.[33] In addition, there are two particular aspects of VCAT's review jurisdiction in planning matters that should be noted. First, whereas local Councils are bound by (valid) directions given under certain provisions of the PEA by certain statutory referral authorities, VCAT is not bound by such directions.[34] Secondly, and more broadly, by virtue of Schedule 1 to the VCAT Act, VCAT's powers to resolve planning issues can sometimes be more extensive than those of other bodies whose decisions VCAT may review.[35]

18 Section 148 of the VCAT Act is potentially applicable to all VCAT decisions and orders, whether made in VCAT's original jurisdiction or in its review jurisdiction. In Hoskin v Greater Bendigo City Council,[36] a case relating to an exercise of VCAT's review jurisdiction in respect of planning matters, the Court of Appeal said of appeals under s 148 of the VCAT Act:[37]

Such an appeal is limited to an appeal on questions of law.

It is not open to this Court to entertain further debate as to the merits of the Tribunal's decision on the facts. It is only if a conclusion on the facts was not open to it that an error with respect to factual matters will involve a question of law.

This Court's function is limited to the exercise of a supervisory jurisdiction intended to ensure that the merits review which the Tribunal carried out was undertaken in accordance with its statutory obligations.

19 Likewise, in Mintfield Pty Ltd v Commissioner of State Revenue,[38] being an application for leave to appeal under s 148 in respect of an exercise by VCAT of its review jurisdiction in State taxation matters, Croft J said:[39]

...any appeal [under s 148] is dependent upon two important qualifications. First, that the appeal be on a question of law, and secondly, that the Court gives leave to appeal. The legislative policy underlying these provisions is that "VCAT decisions should not generally be disturbed where cases have been decided in that forum other than on questions of law and where there is something about the decision bearing upon the question of law which warrants a grant of leave to appeal". It follows that "[t]his Court is not entitled to enter into the fact finding exercise which the legislature has deliberately entrusted to a specialist Tribunal".

Croft J repeated these statements (with supporting authority) in Club Fogolar Furlan Melbourne v Paramount Investments Group Pty Ltd,[40] which was an application for leave to appeal under s 148 in relation to an exercise by VCAT of its original jurisdiction in leasing disputes.

20 In an appeal under s 148 of the VCAT Act, the appellant, in order to succeed, must demonstrate that VCAT went wrong in law in arriving at its decision. It is not enough for the appellant to show that VCAT's reasons for its decision are so expressed as to suggest the possibility that VCAT proceeded on a wrong view of the law. This Court is not entitled to interfere with the decision unless it is satisfied that there was, in fact, a vitiating error of law.[41]

21 An error of law will not be a vitiating error unless it is material, that is, unless there is a realistic possibility that VCAT's decision could have been different, and more favourable to the appellant, if the error of law had not occurred.[42] The onus of establishing the materiality of an accepted error lies on the appellant (or, correspondingly, where a decision is challenged by way of judicial review for jurisdictional error, on the plaintiff).[43] A long established, related principle of law, which applies specifically to mistakes made by administrators as to the source of their power, has been authoritatively stated by the High Court in the following terms (footnotes omitted):[44]

A mistake by an administrative decision-maker as to the source of his or her power to make a decision does not necessarily invalidate the decision if it is able to be supported by another source of power. Whether it can be supported by the other source of power will depend upon whether that power is subject to requirements which the decision-maker has failed to meet because of his or her belief as to the source of the power or for some other reason. As Heydon J said in Eastman v Director of Public Prosecutions (ACT):

If the maker of an administrative decision purports to act under one head of power which does not exist, but there is another head of power available and all conditions antecedent to its valid exercise have been satisfied, the decision is valid despite purported reliance on the unavailable head of power.

22 VCAT's reasons are to be read fairly and as a whole, without over-zealous scrutiny.[45] In Secretary to the Department of Justice & Regulation v OUX,[46] the Court of Appeal said:[47]

Under s 148 of the VCAT Act, this Court's jurisdiction is, as we have mentioned, limited to the resolution of questions of law. In a not dissimilar legislative context, this limitation has been said to impose a "significant constraint" upon the role of the Court in reviewing a Tribunal's decision. This "practical as well as principled restraint" means that the Court "will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal's thoughts". Hence, the reasons of the Tribunal for the decision under review "are not to be construed minutely and finely with an eye keenly attuned to the perception of error". The reality is "that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed". We have endeavoured to take a broad and practical approach to the interpretation of the Tribunal's reasons, bearing the foregoing principles steadily in mind.

Recently, in Sandbach v Victorian Legal Services Commissioner,[48] the Court of Appeal discussed, to much the same effect, the legal principles applicable to appeals and applications for leave to appeal under s 148 of the VCAT Act. More recently still, the Court of Appeal has emphasised that any appeal under s 148 must be limited to a question of law as distinct from a question of fact, and has referred to the 'significant constraint' that s 148 imposes on the role of this Court.[49]

23 Further, VCAT's reasons should be read in context, and the context will often include the way in which the proceeding was conducted before VCAT.[50] Thus, in The Gombac Group Pty Ltd v Vero Insurance Ltd,[51] Osborn J said that, in an appeal under s 148, there is a need for this Court to recognise the 'forensic realities' of the way in which the case was put to VCAT. Gombac was decided in 2005.[52] The appellant was a building company. It had sought review[53] by VCAT of a decision of a statutory insurer allowing a claim by the purchaser of a house for defective flooring work. Ultimately, VCAT dismissed the building company's application for review. The building company's appeal to the Trial Division of this Court under s 148 also failed. In answer to one of the building company's grounds of appeal, Osborn J said, in part:[54]

The third answer to the second ground of appeal is that the parties joined issue before the Tribunal on the basis of particulars of claim, in which the appellant alleged it was entitled to relief in substance:

(a) because the floor was installed with satisfactory moisture content; and

(b) because the defects resulted from the failure to properly protect the floor from damage after installation and in particular a failure to prevent damage due to direct sunlight and lack of ventilation.

Both these propositions were put in final submission to the Tribunal on behalf of the appellant, although the evidentiary basis upon which they were argued changed from that initially put forward by the appellant as a result of the course of the evidence before the Tribunal.

If neither of these propositions were accepted by the Tribunal, it is difficult to see that it erred in law in rejecting the appellant's claims. It addressed the claim on the very basis it was invited to by the appellant. The Tribunal was required to engage in the practical task of resolving fairly the issues which had been presented to it by the parties.[55] On appeal, this Court must recognise the forensic realities of the way in which the case was put to the Tribunal. It is these realities to which a Tribunal must respond in its reasons.

24 I observe that, in the footnote to the third last sentence of the above passage of his Honour's judgment, Osborn J cited s 98(1) of the VCAT Act. That subsection provides, in short: (a) that VCAT is bound by the rules of natural justice; (b) that VCAT is not bound by the rules of evidence; (c) that VCAT may inform itself on any matter as it sees fit; and (d) that VCAT must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of the VCAT Act and the enabling enactment and a proper consideration of the matters before it permit. Sub-section 98(1) (like the abovementioned ss 116, 117 and 124 of the VCAT Act and like s 148 itself) is applicable to proceedings in both VCAT's original jurisdiction and its review jurisdiction.

25 Thus, in Secretary to the Department of Economic Development, Job, Transport and Resources v Avid Property Group Nominees Pty Ltd ('Avid'),[56] in relation to a land valuation and compensation matter that had been dealt with in VCAT's original jurisdiction, the Court of Appeal (dismissing an appeal from Emerton J) referred to s 98(1)(d) of the VCAT Act,[57] and went on to say:[58]

There was no error of law [by VCAT] in determining only the issues raised by the parties before it.

26 Similarly, the Court of Appeal said:[59]

The Tribunal made no error of law in proceeding upon the factual basis accepted, and implicitly agreed to, by the parties before it.

27 In Avid, Emerton J had refused to allow the appellant to raise a new point on the s 148 appeal. The Court of Appeal affirmed this exercise of Emerton J's discretion. The Court of Appeal's reasons for this included:

(a) that the new point had not been argued before the Tribunal and the opposing party might have addressed further evidence if it had been in issue;

(b) that there is a strong public interest in maintaining the finality of decisions with respect to contested claims, and, conversely, a strong public interest weighing against the taking of points only upon appeal;[60] and

(c) that these considerations have particular force in the case of a tribunal, which it is apparent the legislature intended to act speedily and in an informal manner.[61]

28 In addition - in relation to VCAT's review jurisdiction with respect to decisions on planning permits under Part 4 of the PEA and under the applicable general provisions of the VCAT Act - s 84AB of the PEA specifically provides that, if all parties agree, VCAT may confine, to particular matters in dispute, a review in respect of an application made under one or other of certain listed sections of Part 4 of the PEA. That list includes the section relevant to the present case, namely s 80 of the PEA.[62] Where it applies, s 84AB modifies the operation of s 84B of the PEA. Section 84B, in turn, specifies what VCAT must (otherwise) take into account in determining an application for review under Part 4 of the PEA.

29 I acknowledge that the general principle that parties should usually be bound by the way they ran their case at first instance is 'not applicable where questions of jurisdiction are concerned'[63] and that questions of jurisdiction 'should be decided on their merits and not by reference only to arguments that are put by the parties'.[64] But, as will be seen, in the present case there is in truth no doubt about the jurisdiction of VCAT.

30 I acknowledge, also, that the Court is not bound by the arguments of parties (or of their counsel) on questions of statutory interpretation.[65] That is all the more evident in relation to questions of statutory interpretation concerning the existence or extent of the jurisdiction or powers of a relevant court, tribunal or other body. On the other hand - due to the significance of any interference by this Court with the course of public administration - the mere fact that a sole respondent to an appeal from a decision made by VCAT in its review jurisdiction fails to answer, adequately or appropriately, some attack made by the appellant on the decision does not mean that this Court is bound to accept that the attack is justified. Even where a sole respondent is prepared to consent to an order setting aside a decision of VCAT, this Court is not thereby obliged to set it aside.[66] In any event, in the present case, Mr Kilpatrick has staunchly and appropriately defended VCAT's decision; and, as mentioned above, I do not consider that VCAT's decision involved any error of law at all. Consistently with that view, I note again that the statutory authority (which was represented before me by senior and junior counsel) has chosen not to attack the validity or effectiveness of test or token permit applications (generally) or the validity or effectiveness of test or token applications to VCAT for review in respect of such permit applications. If test or token applications to VCAT for review are valid and effective (as I consider them to be), then, as will appear, there is very little left of the statutory authority's attack on VCAT's decision in this case.

31 Turning to the statutory requirement for leave to appeal, I note again that, by virtue of s 148(2A) of the VCAT Act, which was introduced in 2017, the Trial Division may grant an application for leave to appeal under s 148 only if it is satisfied that the proposed appeal has a 'real prospect of success'. As mentioned above, this test has been equated to a requirement that the appeal have a 'real', as opposed to a 'fanciful' chance of success.[67] More generally, in Mintfield, Croft J said:[68]

The new requirement of s 148(2A) makes express the restraint this Court ought exercise when reviewing decisions of VCAT; a restraint long and more generally recognised in case authority. In considering cases of this nature, courts have been concerned to respect the role entrusted by the legislature to the particular tribunal and not, in effect, subvert this position by seeking out error. Thus, Kirby J in Roncevich v Repatriation Commission said:

Courts conducting this form of review have been repeatedly enjoined by this Court to avoid overly pernickety examination of the reasons. The focus of attention is on the substance of the decision and whether it has addressed the 'real issue' presented by the contest between the parties.

32 The Court retains a discretion in relation to leave, even if the Court considers that an appeal would have a real prospect of success.[69] Indeed, in a proper case, the Court may refuse leave to appeal without considering whether or not the applicant has a real prospect of success.[70] The applicant for leave must persuade the Court to exercise the discretion in the applicant's favour.[71] The 'overriding consideration in determining an application for leave to appeal under s 148 is the justice of the case as it appears to the Court. That means justice to all parties, not only the applicant for leave.'[72]

33 Even if leave to appeal under s 148 is granted and a vitiating error of law is shown on appeal, the Court still has a discretion, in appropriate circumstances, to dismiss the appeal.[73]

34 Finally, it may be fitting for this Court to apply an even greater level of restraint - as to both applications for leave to appeal and appeals - in relation to decisions of VCAT involving planning disputes, as compared with decisions of VCAT in other fields. Part 16 of Schedule 1 to the VCAT Act contains a set of provisions (clauses 52 to 66 inclusive of Schedule 1) that, together with provisions such as the abovementioned s 84AB of the PEA, reflect what, in Rumpf v Mornington Peninsula Shire Council ('Rumpf'),[74] Balmford J described as 'the general legislative approach of giving the tribunal extensive powers to enable it to resolve planning issues which arise in the community and to resolve them according to the merits of the case.'[75] Similar observations have been made in numerous other cases.[76]

35 The applicant in this Court is the Head, Transport for Victoria ('HTV'). HTV is established as a body corporate under s 64A of the Transport Integration Act 2010 ('the TIA'). Under s 64B of the TIA, the primary object of HTV is to coordinate, provide, operate and maintain the public transport system and the road system in Victoria. HTV is the successor in law of, among other entities, the former Roads Corporation. HTV was an active party at VCAT.

36 As mentioned above, the applicant at VCAT was, and the first respondent in this Court is, Mr John Kilpatrick. Mr Kilpatrick owns and farms land at Ballan Road, Wyndham Vale. The land is on several titles. The present matter relates to land within four of those titles. Mr Kilpatrick is the only active respondent in this Court.

37 The second respondent in this Court is Wyndham City Council. Mr Kilpatrick's farm lies within the municipal area of Wyndham City Council. It was the Council that issued the planning permits in question, with the conditions that are now in controversy. The Council played a limited, secondary role at VCAT for a time, and ultimately took a neutral position there. It takes no active part in the present proceeding and will abide the result.

The basic factual background; the relevant planning instruments; the general tenor of the statutory provisions concerning financial compensation; and the potential liability of HTV

38 Wyndham Vale, where Mr Kilpatrick's farm is located, lies on the north-western outskirts of the Melbourne metropolitan area. In 2010, at the instance of the Roads Corporation, parts of Mr Kilpatrick's farm became covered by a reservation for a proposed major public road and rail corridor known as the Melbourne Metropolitan Outer Ring Road/E6 Transport Corridor ('the Transport Corridor'). The curving strip of land reserved for the Transport Corridor is about 100 kilometres in length. The reservation takes the form of a Public Acquisition Overlay which has been inserted into four planning schemes, including the Wyndham Planning Scheme,[77] pursuant to s 6 of the PEA. It is known as Public Acquisition Overlay No 5 ('PAO5'). In PAO5, it is expressly stated that a purpose of the overlay is 'to reserve land for a public purpose'.[78] PAO5 remains in place. The land to which it applies cannot be developed, or be put to any new use, without a fresh planning permit. Any application for such a fresh planning permit must meet the relevant requirements of PAO5 as well as all other applicable requirements.

39 Victorian statute law provides for financial compensation for the compulsory acquisition of private land for public purposes. The principal provisions in that regard are in Part 3 of the Land Acquisition and Compensation Act 1986 ('the LACA').

40 Victorian statute law also provides for compensation, in certain circumstances, for land owners who suffer financial loss caused by their land being reserved or set aside for a public purpose in advance of a proposed compulsory acquisition. The principal provisions in that regard are in Part 5 of the PEA. These provisions, in turn, pick up and apply certain provisions of the LACA. Generally speaking, in order to 'trigger' a claim for compensation for pre-acquisition financial loss, an affected land owner must either sell the land in question or else (in effect) be refused or denied planning permission to develop the land in a particular way, or to use it in a particular new way, on the ground that the land is or may be required for a public purpose. The (effective) refusal or denial of planning permission might be done by the relevant 'responsible authority' at first instance or, in some circumstances, including in relation to planning conditions, by VCAT on review. Applications for planning permits, decisions on planning permit applications and applications to VCAT for the review of decisions on planning permit applications or conditions, are regulated, in the main, by Part 4 of the PEA.

41 The PEA includes provisions for identifying the entity which will be liable to pay any compensation payable under Part 5 of the PEA.[79] It is common ground that HTV is the entity liable to pay any such compensation that becomes payable as a result of the operation of PAO5. Thus, if Mr Kilpatrick were to become entitled to be paid compensation for financial loss attributable to PAO5, the entity liable to pay it would be HTV.

The relevant provisions of the PEA in more detail

42 The relevant version of the PEA is authorised version number 153, incorporating amendments as at 24 February 2022. I will treat that version as though it remains current, ignoring any subsequent amendments.

43 Like most legislation, the PEA should be read as a whole, notwithstanding that it is divided into Parts,[80] and it should be read in the order in which its provisions appear, i.e. from the beginning to the end.[81] The Parts of most relevance in this case are Part 1−Preliminary, Part 2−Planning Schemes, Part 4−Permits and Part 5−Compensation. There are some significant express or implied links between those particular Parts.

44 As with Acts of Parliament generally, the text of the PEA must be construed in context and purposively.[82] I turn now to the text of the most relevant particular provisions of the PEA.

45 I begin with certain provisions contained in Part I−Preliminary. These start with s 1 (Purpose), which provides that the purpose of the PEA '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'.

46 Section 3 contains the following definition of 'referral authority':

referral authority means a body or person specified in a planning scheme as-

(a) a determining referral authority; or

(b) a recommending referral authority;

In turn, 'determining referral authority' is defined in s 3 as follows:

determining referral authority means, in relation to an application for a permit or an amendment to a permit, a person or body that a planning scheme specifies as a determining referral authority for applications of that kind.

47 Sub-section 4(1) states the objectives of planning in Victoria. The objectives stated in s 4(1)(a), (e), (f) and (g) are the most noteworthy for present purposes. They are:

(a) to provide for the fair, orderly, economic and sustainable use, and development of land;

(e) to protect public utilities and other assets and enable the orderly provision and coordination of public utilities and other facilities for the benefit of the community;

(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.

48 Sub-section 4(2) states the objectives of the planning framework established by the Act. One of these stated objectives, as set out in s 4(2)(l), is 'to provide for compensation when land is set aside for public purposes and in other circumstances'.

49 I turn now to Part 2−Planning Schemes.

50 Under s 6(1), a planning scheme for an area 'must seek to further the objectives of planning in Victoria within the area covered by the scheme': s 6(1)(a). A planning scheme 'may make any provision which relates to the use, development, protection or conservation of any land in the area': s 6(1)(b). Sub-section 6(2) provides, among other things, that a planning scheme may 'designate land as being reserved for public purposes': s 6(2)(c). A planning scheme 'may designate a Minister, public authority or municipal council as an acquiring authority for the purposes of this Act for land reserved for public purposes': s 6(2)(fa). It may 'state the provisions of the planning scheme which would have applied to land reserved for a public purpose under the planning scheme if it had not been reserved for this purpose': s 6(2)(i).

51 The identification of 'the planning authority' for various purposes of the Act is to be done under ss 8, 8A, 8B and 9, principally. Relevantly, s 8A(1) provides that a 'municipal council is a planning authority for any planning scheme in force in its municipal district'.

52 Under s 12(1)(a), a planning authority must implement the objectives of planning in Victoria. Under s 12(3), a planning authority may do all things necessary to encourage and promote the orderly and proper use, development and protection[83] of land in the area for which it is a planning authority.

53 Section 13 identifies who will be a 'responsible authority' for various purposes of the Act. Subject to a presently irrelevant exception, s 13(2)(a) provides that the person who is the responsible authority is the municipal council, if the planning scheme applies to land which is wholly or partly in its municipal district. Under s 14(b), one of the duties of a responsible authority is to implement the objectives of the planning scheme.

54 Under s 14A, a referral authority must, in relation to any matter referred to it under the PEA, have regard to the objectives of planning in Victoria in considering the matter: s 14A(a). It must comply with the PEA: s 14A(c). And it must have regard to the planning scheme: s 14A(d).

55 I turn now to the salient provisions of Part 4−Permits.

56 Section 47 of the PEA provides, among other things, that if a planning scheme requires that a permit be obtained for a use or development of land, then an application for the permit must be made to the responsible authority in accordance with the regulations. Section 47 itself also imposes various requirements in respect of the making of an application for a planning permit, including that the application must state the estimated cost of any development for which a permit is sought. By virtue of s 48, an application for a permit may only be made by the owner of the relevant land or with the owner's signature or after notification to the owner about the application.

57 Section 55 provides that a responsible authority must give a copy of an application for a permit and related information to each referral authority. Section 55(4) provides that a planning scheme may specify that a referral authority is 'a determining referral authority' or 'a recommending referral authority'.

58 So far as relevant, s 56 provides:

56. Action by referral authority on application

(1) A referral authority must consider every application referred to it and may tell the responsible authority in writing that:

(a) it does not object to the granting of the permit; or

(b) it does not object if the permit is subject to the conditions specified by the referral authority; or

(c) it objects to the granting of the permit on any specified ground.

(3) The referral authority may also give the responsible authority its comments on the application.

59 Section 60 deals with matters that the responsible authority must or may consider. Pertinently, it provides:

60. What matters must a responsible authority consider?

(1) Before deciding on an application for a permit, the responsible authority must consider-

(a) the relevant planning scheme; and

(b) the objectives of planning in Victoria;

...

(d) any decision and comments of a referral authority which it has received;

60 Section 61 deals with decision-making by responsible authorities on permit applications. Sub-section (1) provides:

61. Decision on application

(1) The responsible authority may decide-

(a) to grant a permit; or

(b) to grant a permit subject to conditions; or

(c) to refuse to grant a permit on any ground it thinks fit.

61 Section 61(2) provides:

(2) The responsible authority must decide to refuse to grant the permit if a relevant determining referral authority objects to the grant of the permit.

62 Section 61(2A) provides:

(2A) The responsible authority may decide to refuse to grant a permit if a relevant recommending referral authority objects to the grant of the permit.

63 Section 62(1)(a) is as follows:

62. What conditions can be put on permits?

(1) In deciding to grant a permit, the responsible authority must-

(a) include any condition which the planning scheme or a relevant determining referral authority requires to be included.

64 Division 2 of Part 4 of the PEA provides for reviews by VCAT in respect of things done or not done by responsible authorities in relation to applications for permits. Division 2 comprises ss 77-86 (inclusive). It includes several 'enabling enactments' within the meaning of the VCAT Act. Among these enabling enactments are, relevantly, ss 77, 79 and 80.

77. Applications for review of refusals to grant permits

An applicant for a permit may apply to the Tribunal for a review of a decision by a responsible authority to refuse to grant a permit.

79. Applications for review of failures to grant permits

An applicant for a permit may apply to the Tribunal for review of the failure of the responsible authority to grant the permit within the prescribed time.

80. Applications for review of conditions on permits

(1) An applicant for a permit may apply to the Tribunal for review of any condition in a permit which the responsible authority has issued or decided to grant to the person.

68 By virtue of s 83(1)(b), a determining referral authority is a party to a proceeding for review of a permit condition if the determining referral authority had required that the condition be included in the permit.

84A. Parties not restricted to grounds previously notified

A party in a proceeding for review under this Act is not restricted at the hearing of the proceeding to any grounds previously notified to the other parties (whether in the course of or before the proceeding) or the Tribunal.

84AB. Tribunal may confine review with agreement

The Tribunal may confine a review in respect of an application made under s 77, 78, 79, 80, 81, 82, 82AAA or 82B to particular matters in dispute if all the parties agree, and for this purpose s 84B applies as if the reference to an application for review were a reference to an application for review as so confined.

84B. Matters for Tribunal to take into account

(1) In determining an application for review under this Act, the Tribunal must-

(a) take account of any matter which the person or body in respect of whose decision the application for review is made-

(i) properly took account of in making its decision; or

(ii) was required to take account of in making its decision; and

(b) have regard to any matter which the person or body in respect of whose decision the application for review is made-

(i) properly had regard to in making its decision; or

(ii) is required to have regard to in making its decision.

(2) In determining an application for review under this Act, in addition to the matters referred to in sub-section (1), the Tribunal-

(a) must take into account any relevant planning scheme;

(b) must have regard to the objectives of planning in Victoria.

85. Determination of applications

(1) After hearing an application for review, the Tribunal may-

(a) direct that a permit must not be granted; or

(b) in the case of an application for review of a refusal or failure to grant or a decision to grant a permit-

(i) grant the permit and direct the responsible authority to issue it; or

(ii) grant the permit, direct that the permit must or must not contain any specified condition and direct the responsible authority to issue the permit; or

(e) direct that a permit must or must not contain any specified condition;

73 I turn now to Part 5 of the PEA. Part 5 provides, principally, for compensation for owners and (in some cases) occupiers of land (collectively, 'landholders') in respect of certain planning measures, in certain situations. I will refer to the most salient provisions of Part 5.

74 It is desirable to set out the whole of ss 98 and 99, to wit:

(1) The owner or occupier of any land may claim compensation from the planning authority for financial loss suffered as the natural, direct and reasonable consequence of -

(a) subject to subsection (1A), the land being reserved for a public purpose under a planning scheme; or

(b) subject to subsection (1B), the land being shown as reserved for a public purpose in a proposed amendment to a planning scheme of which notice has been published in the Government Gazette under section 19; or

(c) a declaration of the Minister under section 113 that the land is proposed to be reserved for a public purpose; or

(d) access to the land being restricted by the closure of a road by a planning scheme.

(1A) Subsection (1)(a) only applies if the provision of the planning scheme that has been applied to and reserves the land expressly states as a purpose "to reserve land for a public purpose".

(1B) Subsection (1)(b) only applies if the provision of the planning scheme that is to be applied to and reserve the land (as a result of the proposed amendment) expressly states as a purpose "to reserve land for a public purpose".

(2) Subject to subsection (2A), the owner or occupier of any land may claim compensation from a responsible authority for financial loss suffered as the natural, direct and reasonable consequence of a refusal by the responsible authority to grant a permit to use or develop the land on the ground that the land is or will be needed for a public purpose.

(2A) Subsection (2) does not apply if the planning scheme prohibits or otherwise prevents the type of use or development that has been applied for in the permit application.

(3) A person cannot claim compensation under subsection (1) if -

(a) the planning authority has purchased or compulsorily acquired the land or part of the land; or

(b) a condition on the permit provides that compensation is not payable.

(4) The responsible authority must inform any person who asks it to do so of the person or body from whom the first-mentioned person may claim compensation under this Part.

(5) In subsection (1) -

"planning authority" means -

(a) in relation to a claim under subsection (1)(a), the planning authority that prepared the planning scheme or amendment that reserved the land for a public purpose; or

(b) in relation to a claim under subsection (1)(b), the planning authority that prepared the proposed amendment to the planning scheme that shows the land as being reserved for a public purpose; or

(c) in relation to a claim under subsection (1)(c), the Minister, public authority or municipal council specified in the declaration as responsible for the proposal; or

(d) in relation to a claim under subsection (1)(d), the planning authority that prepared the planning scheme or amendment that restricted access to the land by the closure of a road.

99. When does the right to compensation arise?

A right to compensation and the liability of a planning authority or responsible authority to pay compensation arises -

(a) under section 98(1)(a), (b) or (c) after -

(i) the responsible authority has refused to grant a permit for the use or development of the land on the ground that it is or may be required for a public purpose; or

(ii) the Tribunal directs that a permit must not be granted on the ground that the land is or may be required for a public purpose; or

(iii) the responsible authority -

(A) fails to grant a permit within the period prescribed for the purposes of section 79; or

(B) grants a permit subject to any condition which is not acceptable to the applicant -

and the Tribunal disallows any application for review of the failure or condition on the ground that the land is or may be required for a public purpose; or

(b) under section 98(1)(a), (b) or (c), on the sale of the land concerned under section 106; or

(c) under section 98(1)(d), on the coming into operation of the relevant provision of the planning scheme; or

(d) under section 98(2), on the refusal of the permit.

75 Section 100 provides that compensation payable under s 98 in respect of a residence may be increased (by up to 10%) for intangibles. Section 102 provides that, in determining compensation to be paid under Part 5, regard must be had to any amount previously paid in respect of the land by way of compensation. Section 103 deals with small claims. Section 104 provides that the maximum amount of compensation for financial loss payable under s 98 is the difference between the actual value of the land at the time when liability for compensation first arose and the value which the land would have had at that time in the absence of the relevant circumstance. Section 104A relates to the taking into account of the actual zoning of land in determining compensation. Section 105 provides:

105. Land Acquisition and Compensation Act 1986 to apply

Parts 10 and 11 and section 37 of the Land Acquisition and Compensation Act 1986, with any necessary changes, apply to the determination of compensation under this Part as if the claim were a claim under s 37 of that Act.

76 Section 106 of the PEA provides that, if certain conditions are met, an owner of land may claim compensation under s 98 after selling the land. Section 107 provides that a landholder may, in some circumstances, claim compensation for the removal or lapsing of a reservation. By virtue of s 108, a person does not have a claim for compensation if that person was not the owner or occupier of the relevant land when the right to compensation arose, or if the person acquired the land after the publication of notice of a proposed reservation.

77 So far as relevant, s 109 of the PEA provides:

109. When is compensation payable by other authorities

(1) Subject to subsection (1A), a Minister, public authority or municipal council is liable to pay any compensation payable under this Part which arises from the reservation or proposed reservation of land for public purposes if the Minister, public authority or municipal council had asked -

(a) the planning authority in writing to prepare a planning scheme or amendment to reserve the land for a public purpose.

(1A) If the planning scheme designates a Minister, public authority or municipal council as an acquiring authority for the purposes of this Act for land reserved for public purposes, the acquiring authority is liable to pay any compensation payable under this Part which arises from that reservation.

(2) A referral authority is liable to pay compensation under this Part which arises from a refusal to grant a permit if the responsible authority refused to grant the permit because the referral authority objected.

(3) The claimant must claim the compensation from the Minister, the public authority, the relevant municipal council or the referral authority instead of the planning authority.

(4) Despite anything to the contrary in any Act, a public authority or municipal council may pay out of its funds any amount it is required to pay because of this section.

Part 5 of the PEA also contains various additional provisions to prevent windfalls, double dipping and the like. Thus there are provisions for the recording on title of amounts of compensation paid (s 110); for the recovery of compensation previously paid where a reservation is discontinued (s 111); and for the reimbursement of compensation to a person or authority where another person or authority acquires the land or is designated as the acquiring authority (s 112).

Mr Kilpatrick applies to the Council for planning permits

78 In October 2020, with a view to making a subsequent claim against HTV for financial compensation for loss attributable to PAO5, Mr Kilpatrick applied to the Council for planning permits to construct four substantial dwellings, one on each of the four abovementioned titles within his farm property. The evidence before this Court does not disclose whether any estimate was given to the Council of the prospective building costs of the dwellings. However, as indicated above, s 47 of the PEA required that this be done; and in Mr Kilpatrick's later VCAT applications (as lodged), he estimated the prospective building costs at $775,000 per dwelling.[84] Each dwelling was proposed to be sited on a part of the relevant title situated squarely within the strip of land reserved for the Transport Corridor. Although the permit applications were professionally prepared, and contained appropriate detail,[85] Mr Kilpatrick did not actually want to have the dwellings built at all. Rather, as mentioned above, Mr Kilpatrick was following a test or token permit application process of the kind that he himself and other Victorian landholders seeking compensation for claimed 'planning blight' had followed previously, where the purpose of the permit application is to seek to enliven a right to compensation under ss 98 and 99 of the PEA.[86] Indeed, I am satisfied that a practice of this kind has been followed in Victoria, without objection by the relevant authorities, for over 30 years.[87] HTV conceded at the VCAT hearing that such a process is valid, legitimate and available to landholders in Victoria.[88] On the other hand, as I will further mention in due course, HTV has said some inconsistent things in this regard in the present proceeding in this Court, albeit while expressly declining to seek leave to further amend its amended notice of appeal so as to include a corresponding proposed ground of appeal.

79 The Council was required by the PEA to refer Mr Kilpatrick's permit applications to HTV as a 'determining referral authority' (as defined in the PEA) for the purposes of PAO5.[89] HTV, in turn, had power to object to the grant of the permits and thus had power, in effect, to direct the Council to refuse Mr Kilpatrick's applications for the permits.[90] However, such refusals would very likely have led to an immediate compensation claim against HTV by Mr Kilpatrick,[91] a prospect of which HTV was well aware from previous dealings between it and Mr Kilpatrick in relation to Mr Kilpatrick's farm.[92] As mentioned above, HTV did not object outright to the grant of the permits. Rather, on 23 December 2020, HTV purported to exercise its (additional) power,[93] as a 'determining referral authority', to require the Council to impose a condition on any permit granted to Mr Kilpatrick, to the effect that each proposed dwelling be re-sited to a part of the relevant parcel of land lying outside the area reserved for the Transport Corridor. In purported exercise of the same power, HTV further directed that there be imposed on any such permit a condition that access to the relevant dwelling be provided by way of an all-weather road leading from a certain existing road, and also a condition to the effect that no compensation be payable for anything done under the permit.[94] Without more, the granting of a permit by a municipal council (or other responsible authority) does not trigger a right to bring a compensation claim under the PEA, even if the grant is accompanied by conditions highly disadvantageous to the applicant.

80 Apparently, the Council was satisfied that the four permits for which Mr Kilpatrick had applied should be granted, subject to a range of conditions, including conditions reflecting the abovementioned requirements of HTV, and subject to the submission of amended plans. Accordingly, on 16 April 2021, the Council granted Mr Kilpatrick planning permits for the proposed dwellings, one to be built within each of the four parcels of land in question, but in each case subject to a number of conditions, including two conditions which (together) required that the dwelling be built outside the strip of land reserved for the Transport Corridor. The planning permits were also each subject to the other conditions required by HTV, namely the access condition (which was uncontroversial) and the condition that there be no compensation for anything done under the permit. The other, remaining conditions, which were required by the Council as distinct from HTV, are of no present significance. As mentioned above, had matters rested there, no compensation claim for 'planning blight' for Mr Kilpatrick would have arisen at that stage under the PEA.

81 However, as shown above, the PEA contains, in Part 5, a certain provision, namely s 99(a)(iii)(B), under which a right to claim compensation will arise where a responsible authority 'grants a permit subject to any condition that is not acceptable to the applicant... and [VCAT] disallows any application for review of the... condition on the ground that the land is or may be required for a public purpose.' So, with a view to taking advantage of s 99(a)(iii)(B), Mr Kilpatrick set about making applications (under Part 4 of the PEA) for review of the conditions.

Mr Kilpatrick applies to VCAT for review of the conditions

82 In May 2021, Mr Kilpatrick lodged with VCAT four applications for review. Each application was for the review of conditions that HTV had caused the Council to impose on the corresponding permit.[95] In particular, in each case, Mr Kilpatrick applied for review of permit conditions 1(a) and 12 (which reflected HTV's relocation requirement) and for review of condition 14 (which reflected HTV's 'no compensation' requirement) (collectively, 'the conditions in question'). The access requirement (which was reflected in condition 13 of the respective permits) was not included as a subject of Mr Kilpatrick's applications for review and can be put aside. All four applications for review were made on standard forms issued by VCAT headed 'Application by a permit applicant for a review of a planning decision'.[96] Each application for review cited (either expressly[97] or by the ticking of the appropriate box on the standard form[98]) s 80 of the PEA, which, as shown above, is contained within Part 4 and provides that an applicant for a permit may apply to VCAT for review of any condition in a permit which the responsible authority has issued or decided to grant to the person. In each of Mr Kilpatrick's applications for review, under the heading 'State your reasons for applying', Mr Kilpatrick indicated that he sought review of the conditions in question on the basis that those conditions were not acceptable to him 'pursuant to s 99(a)(iii)(B) of the PEA'. He also referred to the history of the matter; and he complained that, by means of the 'appealed conditions', HTV was merely seeking to avoid paying compensation. Further, he said that he wanted VCAT to make an order to 'disallow' the application for review 'on the ground that the land is or may be required for a public purpose, pursuant to s 99(a)(iii)(B) of the [PEA]'.

83 Nowhere in any of the four applications for review was there an express request for the deletion of the conditions in question. Nor, in my opinion, contrary to certain submissions later made by HTV to which I will come in due course, did any of the applications for review contain an implicit request for the deletion of the conditions. I use the expression 'implicit request' in the sense of an indirect manifestation of an actual desire or wish on the part of Mr Kilpatrick for VCAT to delete the conditions. Far from manifesting any such desire or wish, the completed application forms were, and can plainly be identified as, merely formal (i.e. test or token) applications to VCAT for the exercise by VCAT of its relevant powers. As indicated above,[99] an informed reader of the completed application forms would know that, depending on what might happen thereafter, the following powers (at least) would be potentially available to VCAT in finally determining the applications for review:

(a) power under s 85(1)(a) of the PEA to direct that a permit must not be granted;

(b) power under s 85(1)(b)(ii) of the PEA to grant the permit, to direct that the permit must or must not contain any specified condition, and to direct the responsible authority to issue the permit;

(c) power under s 85(1)(e) of the PEA to direct that the relevant permits must or must not contain the conditions in question;

(d) power under s 51(2)(a) of the VCAT Act to affirm the Council's decision to impose the conditions;

(e) power under s 51(2)(b) of the VCAT Act to vary the Council's decision to impose the conditions;

(f) power under s 51(2)(c) of the VCAT Act to set aside the Council's decision to impose the conditions and to make another decision in substitution for that decision;

(g) power under s 51(5) of the VCAT Act to confirm the decision of the Council if Mr Kilpatrick did not appear (personally or by representative) at the hearing of the proceeding;

(h) power under s 76 of the VCAT Act to dismiss the proceeding for want of prosecution (where appropriate);

(i) power under s 93 of the VCAT Act to dismiss the proceeding so as to give effect to a settlement between the parties (where appropriate);

(j) power under s 98(1)(b) of the VCAT Act to adopt the practices and procedures of courts of record to the extent necessary to dismiss the proceeding (at least after a proper hearing has taken place);[100]

(k) power under s 98(3) of the VCAT Act to regulate its own procedure, including power to dismiss the proceeding (at least after a proper hearing has taken place);[101]

(l) power to make an appropriate declaration under s 124 of the VCAT Act;

(m) power to make a conditional order under s 130 of the VCAT Act;

(n) implied or incidental power to dismiss or disallow the applications for review.[102]

In the completed application forms, Mr Kilpatrick plainly manifested a desire or wish for VCAT to 'disallow' his applications for review, and to do so on the posited ground of public purpose. That was the real substance of the matter. For present purposes, the concepts of disallowance and dismissal are substantially equivalent.[103] Hence, subject to compliance with any applicable statutory requirements, VCAT had ample power to make orders that would disallow Mr Kilpatrick's applications for review. If the intention were clear, the particular wording that VCAT might in due course employ in that regard would, in my opinion, be secondary. In any event, the particular wording that VCAT did in due course employ (i.e. 'This application is disallowed on the ground that the subject land is or may be required for a public purpose') was, in my view, entirely appropriate. Indeed, an order in such a form is explicitly contemplated in s 99(a)(iii)(B) of the PEA. VCAT could equally have used the language of s 85(1)(e) and given a direction to the effect that the permits must contain the conditions in question, while stating or otherwise indicating (either in its formal order or in its reasons for decision or in both) that the ground of the direction was that the land is or may be required for a public purpose. Likewise, VCAT could have affirmed, under s 51(2)(a) of the VCAT Act, on the same ground, the Council's decision to impose the conditions. Other equivalents might also have been adopted. In each case, the intent, and the legal result, would have been the same.

84 As mentioned above, the applications for review included estimates that the dwellings would cost $775,000 each to build.

85 As is also mentioned above, on a review under Part 4 of the PEA of a planning decision, VCAT is not bound by any direction given by a determining referral authority such as HTV,[104] although, generally speaking, the PEA will otherwise apply to the review by VCAT. On the other hand, because HTV was the relevant determining referral authority, HTV was, by force of s 83(1)(b) of the PEA,[105] a party to each of the applications for review brought by Mr Kilpatrick. HTV was accordingly named as a respondent to each of the applications. The Council was also duly named as a respondent.

86 Like Mr Kilpatrick's original applications for planning permits, his applications to VCAT for review were conducted as test or token applications. They were properly and professionally presented, but, as already mentioned, it was clear from the completed application forms themselves, and it remained clear throughout the process, that the applications for review were brought for the purpose of seeking to trigger an entitlement to bring, in due course, a claim for compensation by reference to ss 98(1)(a) and 99(a)(iii)(B) of the PEA. Later, both during and after the VCAT hearing, as I have already mentioned and as I will further mention below, the solicitor/advocate for HTV expressly conceded that this was a valid, legitimate and available approach for Mr Kilpatrick to take at VCAT.[106] On the other hand, as I have also mentioned already and will further mention in due course, HTV has said some things in this Court that do not sit well with what it had said at VCAT in this particular respect.

87 In August 2021, HTV, being a statutory party to each of the four VCAT proceedings,[107] and having been duly named as a respondent to each proceeding, filed and served a 'statement of grounds', in standard form, in each one. The printed proforma for a statement of grounds states that it is for use by a person 'contesting' a case at VCAT. HTV said, in each of those statements of grounds, that the relevant permit conditions (which HTV itself had required) were 'wholly appropriate' and, in particular, that the conditions fulfilled the objectives of the PEA and complied with the decision guidelines of PAO5.[108]

88 The VCAT proceedings were directed to be heard together, and the hearing was scheduled for 1 February 2022.

89 On 18 January 2022, about two weeks before the scheduled VCAT hearing, HTV's then solicitors, HWL Ebsworth, advised VCAT and the other parties by letter that HTV would 'not oppose' Mr Kilpatrick's applications for review at the hearing; and that, alternatively, HTV would 'consent' to VCAT making orders pursuant to s 85(1)(e) of the PEA directing that each respective permit not contain the conditions in question.[109] This was, of course, a total reversal by HTV of its previous position - namely, contesting the VCAT case and affirming the appropriateness of the conditions it had required to be imposed - as set out in HTV's statements of grounds filed in the Tribunal. HTV's new (stated) position was to favour the grant of permits for the development and use of the proposed substantial dwellings within the reserved land. On the other hand, HTV did not at any stage seek to amend its statements of grounds or to file new statements of grounds in substitution.

Mr Kilpatrick's pre-hearing written submissions at VCAT

90 On 24 January 2022, having received HTV's notification of its changed position, Mr Kilpatrick filed at VCAT written submissions that had been prepared on his behalf by Mr S Morris QC and Mr Chiappi of counsel.[110] A bundle of 10 documents was attached to the submissions. All or most of the attachments were referred to, either expressly or impliedly, in the submissions. I propose to refer to the submissions and attachments in some detail because:

(a) the submissions were later set out as an appendix to the reasons for decision of VCAT;[111]

(b) all of the attachments were ultimately included in the material before VCAT;[112]

(c) VCAT acknowledged in its reasons that it would be cross-referencing to what it called the 'detailed contextual information' set out in the submissions;[113]

(d) VCAT stated that it adopted the 'helpful explanation of the basic context for this dispute' contained in the submissions;[114]

(e) VCAT described the submissions as setting out 'well' the main facts and events leading up to the Tribunal hearing;[115]

(f) VCAT stated that 'this basic context' was not in itself disputed by either the Council or HTV;[116]

(g) VCAT quoted some paragraphs from the submissions in full;[117]

(h) VCAT otherwise referred, at length, to the specifics of the 'detailed contextual information' set out in the submissions;[118]

(i) VCAT also referred to what it called a 'helpful summary', in the submissions, of the 'statutory compensation regime';[119] and

(j) there was ample material in the submissions (much of it unchallenged), and in the attachments (which were not challenged at all), to explain and justify VCAT's ultimate decision and order.

91 In the written submissions, the details of Mr Kilpatrick's two previous successful compensation claims were given.[120] It was then expressly stated on behalf of Mr Kilpatrick that he had 'no interest' in building dwellings on the presently relevant parcels of land;[121] and that he had applied for the planning permits to obtain refusals so as to enliven rights to compensation.[122] It was submitted that this was a legitimate purpose of a planning permit application;[123] and that the legitimacy of this purpose was made clear by the statutory scheme.[124] It was further submitted that the issue for VCAT was 'whether the permits should be refused' on the ground that the land is or may be required for a public purpose.[125] The form of order sought at the end of the document, namely in paragraph [48] thereof - being a form of order which would have involved both disallowance of the applications for review and the setting aside entirely of the Council's decisions on the permit applications and the substitution of decisions to the effect that permits must not be granted on the ground that the land is or may be required for a public purpose - reflected that statement of the suggested issue. However, at the (later) oral hearing, Mr Morris QC departed from this formulation in that he sought simply an order in each proceeding that the application be disallowed on the ground that the land is or may be required for a public purpose.[126] There was no longer a request for the Council's decisions to be set aside or for the substitution of decisions refusing the permits. As will be further seen below, Mr Morris QC later confirmed, in a written post-hearing submission to VCAT, that Mr Kilpatrick sought only the simpler form of order. Mr Morris QC may have had concerns about the range of available forms of order in 'conditions appeals' under s 80 of the PEA, or he may have been seeking to stay closer to the language of s 99(a)(iii)(B) of the PEA. Perhaps both. In any event, as will be seen, VCAT ultimately made an order in the simpler terms that had finally been sought by Mr Morris QC.

92 Returning to Mr Kilpatrick's pre-hearing VCAT submissions, I note that they also included submissions to the effect that:

(a) there was no question that the land is or may be required for a public purpose;[127]

(b) this was implicit in HTV's (initial) referral response by which it required that the dwellings be located outside the reservation;[128]

(c) there was no suggestion that HTV no longer required the land for the Transport Corridor;[129]

(d) the land had been reserved since 2010;[130] and

(e) since 2010, HTV and its predecessors had paid many millions of dollars in compensation to land owners for the reservation of land for the Transport Corridor.[131]

It was also pointed out that previous claims by Mr Kilpatrick himself, based on permit refusals in respect of other parts of his farm affected by the Transport Corridor reservation, had, alone, already led to compensation of more than $48 million for Mr Kilpatrick.[132]

93 It was further put on behalf of Mr Kilpatrick that:

(a) HTV was seeking to avoid the triggering of the right to, and liability for, compensation, either by its initial position of requiring the relocation of the proposed dwellings away from the reservation, or by its new position that permits could and should be granted for dwellings within the reservation;[133]

(b) HTV had not explained why it was seeking to avoid compensation;[134]

(c) Mr Kilpatrick's land had been blighted by the reservation (and by the reservation's consequential effect on the placement of the relevant urban growth boundary) since 2010;[135] and

(d) it was unsatisfactory and unfair for a State authority to seek to avoid liability for the consequences of its own actions in this way.[136]

94 Further particulars were given of Mr Kilpatrick's complaint about the shifting positions taken by HTV.[137] It was put that proper planning considerations had called for permit refusals in the first place, not for conditions requiring the dwellings to be sited off the reserved parts of the land.[138] This was said to be evident for two reasons. First, the permit applications had been specifically for dwellings within the reserved land; and, so far as relevant, the decision guidelines in PAO5 (to which HTV itself had referred in its statement of grounds of August 2021) applied only to the reserved land - those guidelines did not encompass re-location to a point outside the land reserved by the PAO.[139] Second, putting aside prejudice to the proposed Transport Corridor itself, there were no circumstances of the kind adverted to in the decision guidelines (such as a need to avoid an easement or the like) that could have justified a requirement to re-locate the dwellings.[140] Hence, according to the submissions, HTV had adopted the decision guidelines as a means of avoiding liability for compensation, rather than as a response to a relevant planning consideration.[141] Then it was said that HTV's new position - that planning permits should now issue without the relocation conditions - was also a mere attempt to avoid compensation.[142] It was submitted that, in the context of a major infrastructure project, it was inappropriate to allow the reserved land to be developed for dwellings;[143] that the development would prejudice the purpose for which the land was to be acquired;[144] and that this was contrary to the purpose of the PAO.[145]

95 The document concluded with a suggested draft order,[146] which, as mentioned above, was later withdrawn by Mr Morris QC who then proposed a different form of order on behalf of Mr Kilpatrick, albeit one that was intended to secure an equivalent practical result.

The documents that were attached to Mr Kilpatrick's pre-hearing VCAT submissions and that became part of the material before VCAT

96 As mentioned above, a bundle of 10 documents was attached to Mr Kilpatrick's pre-hearing VCAT submissions. Each document became part of the material before VCAT and each was relied upon by Mr Kilpatrick for the purposes of the determination of the combined applications for review. As is also mentioned above, there was no challenge at VCAT to any of the documents in the bundle, and the documents were referred to in Mr Kilpatrick's pre-hearing written submissions, which, in turn, were largely unchallenged and which VCAT plainly found persuasive. So far as possible, I will deal with the documents in date order.[147] They, and their salient features, were as follows:

(a) A fact sheet entitled 'Alignment of Outer Metropolitan Ring/E6 Transport Corridor', published and authorised by the Victorian Government (Department of Planning and Community Development) in June 2009.[148] The document identifies various expected benefits of the proposed Transport Corridor. It states that construction is not expected to start before 2020, 'but we need to begin the process of reserving land for the corridor now'. It further states that reserving the land now 'will ensure we can build the corridor in the future and will create certainty for other land use and transport planning efforts in Melbourne's north and west'. Under the heading 'Features of the proposed route' it is stated that the Outer Metropolitan Ring section of the Transport Corridor will comprise a freeway standard road (ultimately allowing for up to four through lanes in each direction) and a high standard rail corridor connecting with the Princes Freeway and Geelong rail line west of Werribee, the Western Freeway and the Ballarat rail line near Rockbank and the Hume Freeway and interstate rail line near Beveridge. Under the heading 'When will the transport corridor be built?', the following appears:

At the moment, this proposal is at an early stage. The Government is defining the location and reserving the land to meet Victoria's future transport needs. The current planning study has assessed possible routes for the corridor and has recommended a preferred alignment so that the land can be reserved. It is not considering when or how the project will be funded, and does not include any detailed design consideration. Construction on the project is not expected to get underway before 2020.

(b) A Statement of Underlying Provisions (July 2010, updated May 2012) in respect of land reserved for the Transport Corridor, prepared under s 6(2)(i) of the PEA by the relevant Victorian Government Department. This document shows the planning provisions which would have applied in the absence of PAO5, including in relation to the urban growth boundary;[149]

(c) An extract from the website of Urbis, a firm of land valuers and planning consultants, relating to the Transport Corridor.[150] The date of the extract is not stated in the materials in the Court Book, but the extract refers to a report released by Infrastructure Victoria in October 2016. The extract notes that the alignment of the Outer Metropolitan Ring Road (OMR) was gazetted and reserved with a Public Acquisition Overlay (PAO) in August 2010. It identifies the location of the '70 kilometre long reservation', and mentions that it stretches to Kalkallo in the north. It notes that, at the same time, the E6 Transport Corridor between Kalkallo and Bundoora was 'reconfirmed' as part of the OMR project, with this section being 23 kilometres long. It also notes that in October 2016 Infrastructure Victoria released a report that 'again confirmed' the OMR project, with an expected construction timeframe of 'within 15-30 years'. The extract states that the relevant PAO affects around 450 parcels of land. The extract also includes the following:

Although acquisition of affected properties is not expected for some time, land holders who owned their properties before the PAO was introduced have the right to claim compensation under the Planning and Environment Act by either Loss on Sale or a Permit Refusal basis. Urbis has been engaged by various land owners and legal representatives, having been involved in over 20 claims since the PAO was gazetted. We have provided valuation advice for over $325,000,000 of compensation.

(d) A document entitled 'Corridor preservation for Melbourne Outer Metropolitan Ring Road/E6' prepared by Infrastructure Australia in or after 2017.[151] The document notes that the Transport Corridor was added to the 'Infrastructure Priority List' on 17 February 2016. The document states a 'Problem/Opportunity Timeframe' for the Transport Corridor of 'Near term (0-5 years)'. Under the heading 'Problems', the document states that the early protection and staged purchase of land in the corridor is aligned with Infrastructure Australia's previous recommendations to the Council of Australian Governments and is consistent with the 2016 Australian Infrastructure Plan. The document further states that modelling by Infrastructure Australia in 2017 estimates the net cost of protecting and acquiring the Transport Corridor and the site for the proposed Western Interstate Freight Terminal at $2.3 billion (2016 prices) using a 7% real discount rate. Under the heading 'Proposal', the document states:

The proposal is for corridor preservation for the Outer Metropolitan Ring Road and E6 in Melbourne. The corridor has provision for a freeway (four to six lanes in each direction) and four rail tracks.

The land required for the corridor was defined and preserved in 2010 through a Public Acquisition Overlay. The next step in preserving the corridor is acquisition of land in the corridor as it becomes available.

(e) A fact sheet prepared by Infrastructure Victoria in relation to the Transport Corridor.[152] The document is undated. It refers to 'recommendation 66'. It states that sections of the Transport Corridor project address 'critical constraints of the current road network'. It concludes by stating that the strategic assessment by Infrastructure Victoria indicates a 'compelling case' for the road component of the project, assuming that it would be progressively developed from the north east (building the E6 corridor between the Metropolitan Ring Road and Hume Freeway first) to the south west.

(f) A 30 year infrastructure strategy submission, prepared in approximately February 2021 by The Council, for Infrastructure Victoria.[153] In the strategy submission, the Council expresses support for the Transport Corridor and states that the 'next step' in preserving the corridor is the acquisition of land within it as that land becomes available, and undertaking an environmental report on it.[154] The strategy submission recommends, among other things, that the timeline ('in the next 30 years') for progressively constructing the Transport Corridor be brought forward;[155]

(g) A letter dated 1 December 2021 from Mr Kilpatrick's solicitors to a Victorian Government Department responsible for the then recent application to Mr Kilpatrick's land of a State Resources Overlay.[156] The letter advised the Department of the existence of Mr Kilpatrick's permits and of his pending applications to VCAT, and further informed the Department that Mr Kilpatrick had no intention of acting on the permits, that the purpose of Mr Kilpatrick's permit applications was to obtain a refusal so as to enliven a right to compensation under s 98(1)(a) of the PEA; and that the purpose of Mr Kilpatrick's applications for review was 'to obtain a trigger for the statutory right to compensation';

(h) An extract from the website of the Australian Department of Infrastructure, Transport, Regional Development and Communications headed 'Outer Metropolitan Ring/E6 Corridor - Detailed Business Case'.[157] This extract contains project details as updated to 20 December 2021. It states that the Australian and Victorian Governments 'are jointly undertaking a Detailed Business Case to investigate the planning, design development and delivery along Melbourne's Outer Metropolitan Ring and E6 Corridor to support the future construction of this proposed transport link'. The anticipated benefits of the project are listed and it is stated that the development of the business case is estimated to cost $20 million, with $10 million coming from the Australian Government and the other $10 million coming from the Victorian Government;

(i) An extract from the VicRoads website as at 19 January 2022 relating to the Transport Corridor.[158] This extract states that the Transport Corridor will accommodate a 100 kilometre long high-speed transport link for people and freight in Melbourne's north and west. It also states that the planning for the Transport Corridor provides options for an ultimate freeway standard road, capable of up to four lanes in each direction and four railway tracks in the median for interstate freight and high-speed passenger trains between Werribee and Kalkallo, and capable of ultimately being a six-lane freeway standard road elsewhere. Various aims of the project are stated. Under the heading 'Current Status', the document states, pertinently:

While planning to reserve a corridor for this project is completed, further work will be required to prepare an Environment Report as required by the Minister for Planning and obtain planning permits and approvals prior to any construction.

The Outer Metropolitan Ring/E6 reservation allows for a longer term proposal to meet future transport needs. The need for and time of construction will be subject to future consideration for funding.

(j) A diagrammatic summary of the Kilpatrick property titles showing the route of the proposed Transport Corridor and the location therein of the four proposed dwellings.[159] That document is reproduced here, on the next page.

HTV's pre-hearing submissions at VCAT; and some observations about expertise in planning

97 On 25 January 2022,[160] HTV filed at VCAT an undated set of written submissions stated to have been prepared by David Vorchheimer of HWL Ebsworth, solicitors.[161] Later, at the VCAT hearing, Mr Vorchheimer appeared for HTV while, as already mentioned, Mr Morris QC appeared (with Mr Chiappi) for Mr Kilpatrick. Towards the end of that hearing, the presiding Senior Member, Phillip Martin, referred to Mr Vorchheimer and to Mr Morris QC as 'two very experienced advocates... specialist planning lawyers', whom Senior Member Martin 'really appreciated' taking him through the matter.[162] I too proceed on the basis that both of those advocates were very experienced, specialist, planning lawyers. Indeed, there is every reason to infer that all of the persons who represented the (three) parties at VCAT were appropriately experienced and skilled in planning law and practice. As to Mr Morris QC in particular, it would have been well known to all concerned at VCAT that, at the Bar, Mr Morris QC had been a leading junior, and then a leading silk, in the planning and environment field. It would also have been well known to all concerned at VCAT that

Mr Morris QC had been a judge of this Court and, indeed, the President of VCAT for some years, before returning to private practice at the Bar as a silk, practising mainly, again, in the planning and environment field. And I note that, because this matter was 'a proceeding under a planning enactment' within the meaning of cl 52 of Schedule 1 of the VCAT Act, and because it was to be heard by a single member, VCAT was required to be constituted by a member 'who has sound knowledge of, and expertise in planning or environmental practice in Victoria'. I assume that Senior Member Martin was such a member.

98 Unfortunately, HTV's pre-hearing VCAT submissions (of 25 January 2022) seem to have been prepared without the benefit of Mr Kilpatrick's written submissions of the previous day (24 January 2022), since there is no reference in HTV's submissions to Mr Kilpatrick's submissions. Nor is there any reference in HTV's submissions to any of the attachments to Mr Kilpatrick's written submissions (being the documents listed above). On the other hand, it is clear that Mr Kilpatrick's pre-hearing VCAT submissions (of 24 January 2022) and their attachments did become available to Mr Vorchheimer (for HTV) prior to the VCAT hearing. As mentioned above (and as I will further discuss in due course), at the VCAT hearing Mr Vorchheimer did not challenge any of the attachments and made only a limited challenge to the written submissions themselves.

99 In the early part of HTV's pre-hearing VCAT submissions, it was noted expressly that the VCAT matter related to four applications for review pursuant to s 80 of the PEA.[163] The submissions defined these as the 'Applications'.[164] Mr Kilpatrick's 'grounds' were briefly summarised therein by HTV as amounting to the following:

(a) that he had applied for planning permission for the siting of dwellings within PAO5;

(b) that the purpose of those permit applications was 'to trigger an entitlement to compensation under s 98(1)(a)' of the PEA;

(c) that the 'appealed conditions' required the dwellings to be sited outside PAO5; and

(d) that this requirement was contrary to the permit applications and constituted an attempt to avoid the statutory regime for compensation arising from the reservation of land under a public acquisition overlay.[165]

100 Next, HTV said that Mr Kilpatrick had sought an order that the 'Applications' be 'disallowed' on the basis that the relevant land 'is or may be required for a public purpose pursuant to s 99(a)(iii)(B) of the Act'.[166]

101 HTV then referred to its own previous position and to the fact that its position had recently changed.[167]

102 HTV next identified, as its new position, the contention that Mr Kilpatrick's 'Applications' should be 'allowed', and that the relevant conditions should be deleted from each permit.[168]

103 In purported support of its new position, HTV noted that each of Mr Kilpatrick's planning applications sought no more than a single dwelling on each parcel of land. HTV continued:[169]

1. Having regard to the nature of the applications, on reflection, [HTV] has formed the view that the proposals are relatively benign, and are of a scale and impact which will not unreasonably prejudice the future delivery of the OMR.
2. [HTV] draws a comparison between the single dwellings which are contemplated by the Applications and, for instance, an application for a large scale residential subdivision. In the latter scenario, the acquisition of part of the Subject Land at some point in the future would be likely to cause significant hardship and could displace a number of families, notwithstanding the availability of compensation arising under the [LACA]. By comparison, the Applications in questions are, in [HTV's] submission, reasonable and acceptable. It stands to reason that compensation will be payable if and when the land (or part of it) is acquired for the purpose of the OMR at some point in the future.
3. It is important to note that there is presently no fixed timeframe nor any allocated funding for the OMR. Given this and the nature of the applications presently before [VCAT], it is [HTV's] submission that it would be inappropriate for [HTV] to impose restrictions on the use and development of the Subject Land.

104 I note that there was no express suggestion by HTV in its pre-hearing VCAT submissions that any of the four dwellings in question might escape demolition if and when the proposed transport infrastructure came to be built. Indeed, in my view, it was implicitly accepted in those written submissions, and particularly in [10] of the submissions (set out above), that the four proposed dwellings would have to be demolished in that event. However that may be, VCAT ultimately formed the view, as will be seen, that the four proposed dwellings would indeed have to be demolished in that event. HTV does not submit before this Court that it was not open to VCAT to form that view.

105 So far as presently relevant, the additional points made in HTV's pre-hearing VCAT submissions may be summarised as follows:

(a) In relation to the planning merits of each 'Application' (i.e. as defined, each application for review), HTV would 'defer to the Council's assessment of the planning applications'.[170] It was 'evident' that there was no aspect of the planning merits in each 'Application' which might render the 'Applications' inappropriate having regard to the relevant provisions of the Wyndham Planning Scheme;[171]

(b) 'On this basis', the conditions in question should be deleted from the permits;[172]

(c) Unlike a responsible authority dealing with a planning application, VCAT is not bound by s 62(1)(a) of the PEA to implement the requirements of a determining referral authority;[173]

(d) Accordingly, VCAT was not bound, in this case, by HTV's previous requirement (as a determining referral authority) that the conditions in question be imposed on the permits;[174]

(e) The Applications were applications for review made under s 80(1) of the PEA. The Applications 'requested the deletion' of the conditions in question. HTV now did not oppose the Applications and 'supported the deletion' of the conditions;[175]

(f) Mr Kilpatrick's statements of grounds in his Applications had 'also' sought an 'order' that the Applications be disallowed on the basis that is detailed in s 99(a)(iii)(B) of the PEA.[176] There was 'no application on foot for such an order, if one can be made at all'.[177] Section 99(a)(iii)(B) 'does not enliven the Tribunal's power to make any order'.[178] That provision applies only to the underlying reason for which a decision is made by the Tribunal, and it can be engaged only in a circumstance where the Tribunal disallows[179] an application for review.[180] The relevant applications for review, here, were Mr Kilpatrick's Applications pursuant to section 80(1) of the PEA;[181]

(g) '[I]t follows that' if, 'as all parties contend', the applications are allowed,[182] VCAT 'need not concern itself with s 99 of the Act'. 'For completeness' [HTV submitted] no order can or should be made pursuant to s 99(a)(iii)(B) of the [PEA];[183]

(h) While Mr Kilpatrick had filed the Applications 'with a view to triggering the payment of compensation', VCAT need not be concerned that compensation may not be triggered as a result of the Applications, as compensation will be payable:[184]

(i) when the land is compulsorily acquired, in accordance with the LACA;

(ii) if Mr Kilpatrick seeks a planning permit for the use and development of the land which is refused on the basis that the land is required for a public purpose, but in all other respects the proposed use and development is not prohibited or otherwise prevented by the planning scheme;[185]

(iii) if Mr Kilpatrick sells the land in question at a lower price than he might reasonably have expected to get if the land or part of the land had not been reserved;[186]

(i) Having regard to the foregoing, there was no reason in equity or otherwise why the Tribunal 'should go against all parties to the proceedings and refusing [sic] the Applications.'[187] Therefore the conditions in questions 'ought be deleted'.[188]

106 In my opinion, HTV's pre-hearing submissions (as just summarised) were quite misconceived insofar as they asserted that Mr Kilpatrick's applications for review 'requested the deletion' of the conditions in question and insofar as they purported to build on that assertion. As indicated above, there was no express request in the applications for review for the deletion of the conditions. Nor, of course, was there any such request in Mr Kilpatrick's pre-hearing VCAT submissions. The suggestion by HTV that Mr Kilpatrick was impliedly making a request for deletion of the conditions was, and is, untenable. If he was 'requesting' anything, Mr Kilpatrick was requesting the very opposite. In truth, as indicated above, he was simply making four formal, test or token applications for review of the Council's decisions to impose the conditions.

107 Further, in my opinion, HTV's pre-hearing VCAT submissions acknowledged that there was really only one substantive issue for VCAT to decide, namely whether or not - having regard to the existence of the planning reservation for the Transport Corridor and the token nature of the applications for review which invoked the compensation provisions of s 99(a)(iii)(B) of the PEA - it would be an appropriate exercise of VCAT's discretionary review powers for VCAT to authorise the building, at that time, of the four proposed substantial residences within, rather than outside, the strip of land reserved for the Transport Corridor. The only other significant matter raised by HTV's pre-hearing VCAT submissions - and then only in a half-hearted fashion - was the question of whether, in all the circumstances, VCAT had power to make an order to disallow the applications for review on the public purpose ground referred to in s 99(a)(iii)(B) of the PEA. As I have already indicated, and as I will further explain below, in my opinion VCAT plainly did have such power.

108 On 27 January 2022 the Council, as the relevant 'responsible authority' under the PEA, filed its pre-hearing written submissions at VCAT.[189] Paragraph 2 of the submissions confirmed that the four proposed dwellings were to be substantial dwellings. The paragraph is worth quoting in full:

The four applications [for planning permits] sought permission to construct four dwellings. Each dwelling shares the same design being single story, four bedrooms, open plan living, dining and kitchen, study, a gym, three bathrooms, laundry and three car garage. Approximately 412.68sqm each. Each of the dwellings are [sic] sited within the Public Acquisition Overlay. The purpose of the overlay is for acquisition for the Outer Metropolitan Ring/E6 Transport Corridor. The acquisition authority is the Roads Corporation (now Transport for Victoria).

109 In addition, the Council's pre-hearing VCAT submissions made the following presently relevant points within the first nine paragraphs:

(a) that Mr Kilpatrick's applications for planning permits were lodged pursuant to s 47 of the PEA;[190]

(b) that the applications for planning permits led to referrals under s 55 of the PEA to HTV; and that HTV had had no objection to the dwellings being constructed, subject to certain conditions mandated by HTV, including that the dwellings be sited outside PAO5, as mentioned above;[191]

(c) that, in those circumstances, the Council had supported the applications for planning permits as being generally acceptable in planning terms;[192]

(d) that the Council noted HTV's 'advice' that siting the dwellings outside PAO5 'ensures that [PAO5's] purpose as a roadway/transport corridor is not prejudiced'.[193]

110 In the first two sentences of paragraph 10 of the Council's pre-hearing VCAT submissions, it was noted again that HTV had required that certain conditions be imposed on Mr Kilpatrick's permits, including that the proposed dwellings be sited outside the strip of land reserved by PAO5; and it was noted that those conditions had in fact been imposed on each of the four permits accordingly.

111 However, the Council's pre-hearing VCAT submissions then continue, and conclude, as follows:

1. ...The Determining Authority have now formed the view that the scale of the dwellings will not unreasonably prejudice the future delivery of the OMR. Council's assessment was based on the siting as presented in the applications and have no objection to the removal of the conditions relating to re-siting.
2. [Mr Kilpatrick's] review seeks to delete [HTV's] conditions which [HTV] have now agreed to support. The Council also supports the deletion of the imposed conditions and respectfully submits that the tribunal agrees to the deletion of [the relevant conditions] and affirms Councils [sic] decision to approve the dwellings on the subject land.

The above-quoted parts of paragraph 10 of the Council's pre-hearing VCAT submissions, and the whole of paragraph 11, were apparently inserted by the Council at the last minute. To say the least, they did not sit easily with the language of the first nine paragraphs of the document. Read as a whole, the submissions seemed to support, at one and the same time, the proposed dwellings being both outside PAO5 and inside PAO5. The Council's pre-hearing VCAT submissions reflected a lack of independence from the (fluctuating and self-contradictory) positions of HTV.

112 Moreover, paragraph 11 of the Council's pre-hearing VCAT submissions shared with HTV's pre-hearing VCAT submissions the abovementioned mischaracterisation of Mr Kilpatrick's applications for review, namely that the latter involved requests to delete the conditions. In fact, as I have already explained and as was plainly evident at VCAT, Mr Kilpatrick's applications were merely formal, test or token applications for review of the conditions, being applications made in accordance with the conventional understanding of the relevant parts of the statutory scheme, including the provisions of ss 80, 84B, 85 and 99(a)(iii)(B) of the PEA. Further, the last part of the last sentence of paragraph 11 is quite wrong. The Council had not made a decision to approve dwellings 'on' the subject land. Quite the opposite. Thus what VCAT was reviewing was not a 'decision to approve dwellings on the subject land', but, rather, the Council's decisions to impose the conditions in question (as directed by HTV). Any affirmation by VCAT of the Council's actual decisions would, in effect, have maintained the requirement that the dwellings not be built on the subject land.

113 The oral VCAT hearing duly proceeded on 1 February 2022. The hearing was conducted remotely. No witnesses were called by any party. All or most of the documentary material that came before VCAT had been tendered by Mr Kilpatrick. The Council may have filed some formal documents in addition. However, HTV itself did not adduce any documentary material or any other evidentiary material at all.[194]

114 At the VCAT hearing, the representative for the Council, Ms Phillips, was called on first. Ms Phillips told the presiding member that the Council no longer supported either of the contrasting positions that it had adopted within its pre-hearing written submissions - namely that the proposed dwellings should be located outside the reservation and that the dwellings could be located inside the reservation. In other words, the Council was no longer saying that the conditions should stay or that the conditions should go. Rather, Ms Phillips told Mr Martin that the Council now did not take any position and would abide VCAT's decision.[195] That remained the Council's position thereafter.

115 VCAT then turned to Mr Vorchheimer, representing HTV. Mr Vorchheimer commenced by submitting that this was a 'conditions appeal', not 'an appeal against a refusal'; and that 'the scope and the parameters' within which the Tribunal was called upon to make a decision were, in effect 'limited'.[196] He then said that Mr Kilpatrick had 'applied for something' and was now complaining that he was 'getting it'.[197] He said that this was 'very curious'.[198] Soon after, Mr Vorchheimer repeated that this was 'a very curious scenario'.[199] Indeed, quite often in his oral submissions, in an endeavour to paint Mr Kilpatrick's position as odd or curious, Mr Vorchheimer asserted that, at VCAT, the position not only of HTV but also of the Council was to 'concede' that the existing conditions should be removed from the permits. Mr Vorchheimer said words to this effect on at least eight occasions.[200] It was, of course, true that HTV's ultimate position at VCAT was that the conditions should be removed. But, as just mentioned, it was not true that that was the ultimate position adopted by the Council. Rather, as Ms Phillips had twice announced at VCAT, prior to the first of the (at least eight) erroneous statements made by Mr Vorchheimer, the Council's ultimate position was neutral, i.e. that the Council would abide by the decision of the Tribunal. It was later noted by the Tribunal, in paragraph [16] of its reasons, that the Council had indicated 'from the outset of the hearing' that its position was neutral.

116 Mr Vorchheimer asserted, at an early stage of his oral submissions, that the fact that Mr Kilpatrick did not simply accept that a consent order should be made deleting the conditions in question was 'much to our surprise'.[201] He even said that Mr Kilpatrick had 'flipped [his] position'.[202] Like HTV's pre-hearing VCAT submissions and paragraph 11 of the Council's pre-hearing VCAT submissions, these statements of Mr Vorchheimer involved a stark mischaracterisation of Mr Kilpatrick's case. At best, the statements were somewhat cute.

117 At later stages in his oral submissions, Mr Vorchheimer conceded, as I have already mentioned, that the making of applications for permits by landholders in the hope of refusal is a legitimate process available to any landholder in Victoria;[203] and that pursuing a corresponding outcome by way of a 'conditions appeal' in VCAT is likewise legitimate.[204] More specifically, during those later stages, Mr Vorchheimer said, in relation to Mr Kilpatrick's initial permit applications:[205]

[Mr Kilpatrick has] applied for the permits to obtain refusals so as to enliven the rights for compensation, and obviously they're entitled to make those applications.

...

Yes, it's a legitimate purpose to apply for a permit in that particular situation...

During those later stages, also, Mr Vorchheimer said that there was no 'guarantee' that such an application for a permit would be refused.[206] I interpolate that, while there may be no 'guarantee' that such an application for a permit would be refused, equally a landholder submitting such an application (being, by hypothesis, a legitimate, valid and available application) is entitled to expect that the application will be dealt with in good faith and otherwise lawfully by the relevant Council and by any referral authority. In any event, in relation to the making by landholders generally of test or token applications to VCAT under s 80 of the PEA for review of conditions, Mr Vorchheimer said:[207]

[W]e don't see that it's an illegitimate nature of an application, but it doesn't follow that just because it's a legitimate way in which to try to trigger that compensation that you ought to try and, I guess, get to a circumstance where conditions are imposed purely to try and trigger compensation...

118 I jump further ahead for a moment to note that, after the oral VCAT hearing, Mr Vorchheimer made these concessions even clearer. In paragraph [27] of a post-hearing written submission to VCAT, Mr Vorchheimer wrote this, in relation to Mr Kilpatrick's original planning applications to the Council:[208]

[HTV] does not (and did not during the course of the hearing) submit that [Mr Kilpatrick's] planning applications are somehow invalid or inappropriate. [HTV] accepts that the Council (and any determining referral authority) was required to make a decision in relation to each permit application.

As to Mr Kilpatrick's applications to VCAT under s 80 of the PEA, Mr Vorchheimer wrote this in paragraph [34] of the same submission:[209]

Of course, it is not [HTV's] case that [Mr Kilpatrick's] request to have the s 80 applications disallowed is in any way improper. It is simply that, in [HTV's] submission, the permit should not contain [the conditions in question]. The applications pursuant to s 80 should be allowed, and no further orders should be made.

Thus HTV's post-hearing VCAT submission confirmed, if any confirmation were needed, that HTV's position at VCAT, at least in the ultimate, was to accept the legitimacy of the processes that Mr Kilpatrick had adopted, and to accept that the VCAT case was, in substance, a 'one issue' case, as I have described it above.

119 I return to some earlier parts of Mr Vorchheimer's oral submissions to VCAT.

120 Mr Vorchheimer asserted from the Bar table that HTV had, 'I guess, reflected on the position' and had said that Mr Kilpatrick's applications did not 'actually run totally at odds with the reservation and indeed there is no reason why that sort of activity couldn't occur in the meantime until such time as that land may be required, and we can deal with that at the requisite time'.[210] It could hardly have helped HTV's cause at VCAT, nor does it help HTV's cause in this Court, that HTV told VCAT that Mr Kilpatrick's applications were not 'totally' at odds with the reservation.

121 However that may be, Mr Vorchheimer did not identify for VCAT's benefit any particular person or persons within HTV who had, or who may have, 'reflected on the position' in the manner referred to by Mr Vorchheimer and who had, or who may have, said the things referred to by Mr Vorchheimer. Nor did Mr Vorchheimer give VCAT any indication as to whether that person or persons within HTV was or were in possession of any particular expertise, experience or knowledge. Nothing was said about any deficiencies at HTV that may have contributed to the making of HTV's original decision that required the imposition of the conditions, being a decision that should have been based on due consideration, given that it was to have, and did have, binding statutory force at Council level.

122 Indeed, Mr Vorchheimer made his written and oral submissions in relation to HTV's change of position without adducing any supporting evidentiary material in that regard. As I have already indicated,[211] HTV called no witnesses at VCAT and did not adduce any evidentiary material at all.

123 It is true that, in cases in VCAT's Planning and Environment List, the Tribunal accepts mere assertions by legal representatives or by expert witnesses to a greater extent than occurs in the ordinary courts, or even in other VCAT lists. That may be due in part to the highly specialised experience and skills of the professionals who regularly appear in, or give evidence in, cases in the Planning and Environment List. It may also be due in part to the established procedures of the List, which often involve the filing of a substantial amount of uncontroversial documentary material, especially by municipal councils, in advance of hearings. But this particular VCAT case had some unusual features. As indicated above, a substantial quantity of documentary material had been attached to Mr Kilpatrick's pre-hearing VCAT submissions. It is not clear from the Court Book whether any of those attachments derived from material that had previously been filed by the Council. It seems more likely that all or most of the attachments represented material adduced in the first place by Mr Kilpatrick. In any event, the material contained in the attachments covered the Council's decision-making, and much more. It covered the history of PAO5. It covered previous compensation payments for 'planning blight' attributable to PAO5. The material had been used by counsel for Mr Kilpatrick to raise, in their pre-hearing VCAT submissions, reasoned assertions that HTV had not been dealing genuinely and in good faith with the latest Kilpatrick matter - that, rather, HTV had merely been using devices to seek to avoid exposure to a claim for compensation by Mr Kilpatrick. Those pre-hearing VCAT written submissions had been signed by both senior and junior counsel for Mr Kilpatrick. Moreover, senior counsel for Mr Kilpatrick was Mr Morris QC, who, as mentioned above, must have been known by all to be not only a planning and environment specialist but also a former Judge of this Court and a former President of VCAT. So HTV was well and truly on notice of the risk that Mr Morris QC's assertions about a lack of genuineness and good faith on the part of HTV might be accepted by VCAT, unless HTV could counter those assertions effectively.

124 Later, as will be seen in due course, Mr Morris QC repeated and elaborated upon the assertions contained in Mr Kilpatrick's pre-hearing VCAT submissions about a lack of genuineness and good faith on the part of HTV. Mr Morris QC mentioned, in his oral submissions, many of the supporting matters that had been referred to in Mr Kilpatrick's pre-hearing VCAT written submissions, and he also mentioned various other relevant matters, some based on his own experience as counsel in prior cases arising out of PAO5. Mr Vorchheimer took no objection at any stage to the references by Mr Morris QC to those matters. Mr Vorchheimer had ample opportunity to do so. He also had ample opportunity to seek to adduce evidentiary material on behalf of HTV in an endeavour to counter Mr Morris QC's assertions. Mr Vorchheimer took neither course. Before me, senior counsel for HTV was vaguely critical of the submissions that had been made by Mr Morris QC at VCAT.[212] But that criticism was not merely vague. It came far too late. And it had no foundation.

125 I return to the early stages of Mr Vorchheimer's principal oral submissions at VCAT. I note that (in another remark that could hardly have helped HTV then and that hardly helps HTV now) Mr Vorchheimer told VCAT that, while the building of the residences might increase the value of the land, that was not, in HTV's view, 'wholly inconsistent with the reservation which is what [Mr Kilpatrick] is trying to suggest'.[213]

126 Mr Vorchheimer accepted that VCAT 'can make a finding on this'.[214] But he added that, where the referral authority (here, HTV) says that it does not need the conditions, it would be 'a very brave Tribunal to suggest otherwise'.[215]

127 Mr Vorchheimer told VCAT that he would take the parties' written submissions as read.[216] As already mentioned, Mr Vorchheimer did not at any time challenge anything in the attachments to Mr Kilpatrick's pre-hearing VCAT submissions. Nor did Mr Vorchheimer, at any stage, mount anything in the way of a substantial challenge to any specific thing that had been asserted in Mr Kilpatrick's pre-hearing VCAT submissions themselves, except that Mr Vorchheimer did not concede that HTV's actions had been motivated by a desire to avoid exposure to a claim for compensation, and he claimed, rather, that HTV, on reflection, had merely had a change of heart. However, VCAT's finding to the effect that HTV did not have 'clean hands' in this matter[217] - which is summarised above[218] and which will be quoted in full below[219] - plainly amounted to a rejection by VCAT of Mr Vorchheimer's contentions in this regard.

128 Mr Vorchheimer went on to note that the Council had assessed the permit applications and had decided that a dwelling on each of the lots (away from the reservation for the Transport Corridor) was acceptable.[220] That was of course true, and indeed it was common ground at VCAT, and it has remained common ground. Nor were there any third party objectors. But those circumstances only reinforce the proposition that this was, or came down to, a 'one issue case' at VCAT.

129 Consistently with the proposition that this was a 'one issue case', Mr Vorchheimer proceeded to make the following submissions:[221]

This is no different, and what's just occurred here is that [HTV] has reconsidered its particular views and said well, actually we can live with what's being proposed and we don't take issue with it, because clearly it's not a full sub-division of the land. It's not going to prevent the realisation of any infrastructure outcome on this particular site in any significant way because it's a fairly, I guess, contained type use and/or development, and clearly it's something that we can deal with at the requisite time when that occurs. And infrastructure projects, as the Tribunal would be aware, generally have a fairly long tail. They don't happen overnight. And generally there's generally quite a gap between the time that land is reserved and the asset in terms of the infrastructure item may be realised.

Once again, there was no identification of any particular person within HTV that had been responsible for this suggested assessment. In any event, these remarks tended only to confirm that the VCAT case was a single issue case. That was reinforced, yet again, by what Mr Vorchheimer said next. Referring to the text of one of Mr Kilpatrick's applications for review as lodged with VCAT, Mr Vorchheimer said:[222]

Now, this is the application for review which was lodged by [Mr Kilpatrick] and this is an application for review in relation to conditions on a permit. Now, this is a permit. It's not a situation where you've got objectors and everything is up for grabs. It's only the conditions which are in issue. It's a section 80 application... and this is why we say you're limited [in] your consideration.

130 Likewise, a little later, Mr Vorchheimer said:[223]

The matter before you is a section 80 application, and really what you're being asked to do is make a call on whether or not the conditions ought to be imposed or not, and if they are to be imposed, ought that imposition of those particular conditions be made on a particular basis, which is what the applicant is inviting you to do, and we say is in our submission, respectfully, I guess misconstrued and certainly without foundation and shouldn't be followed, and we will take you to why we say that.

131 Next, Mr Vorchheimer began to take the presiding member through the terms of s 99 of the PEA. He reached the point in s 99(a)(iii)(B) where there is a reference to the responsible authority granting a permit 'subject to any condition which is not acceptable to the applicant'. He said that the existing conditions were 'we know... obviously not acceptable to [Mr Kilpatrick]'.[224] This was a concession by Mr Vorchheimer that the conditions in question were 'not acceptable' to Mr Kilpatrick within the meaning and for the purposes of s 99(a)(iii)(B) of the PEA. At no stage did Mr Vorchheimer seek to withdraw that concession. Quite the contrary. He later repeated it.[225] However, in this Court, as will be seen, HTV argues that it was not open to VCAT to find that the existing conditions were 'not acceptable' to Mr Kilpatrick. HTV now argues in this Court that, because Mr Kilpatrick was saying to VCAT, in effect, that the conditions should remain, VCAT should have found that the conditions had not been 'not acceptable' to him for the purposes of s 99(a)(iii)(B). There are several answers to that argument. One answer is that the argument is quite contrary to Mr Vorchheimer's concession that Mr Kilpatrick did satisfy the 'not acceptable' requirement. That concession was closely related to the other concession that (at least in the end) Mr Vorchheimer made (as mentioned above), namely that the processes on which Mr Kilpatrick had embarked (including his applications under s 80 for review) were valid, legitimate and available to him. As I will further explain in due course, these concessions of Mr Vorchheimer were correctly made, and HTV's attempt in this Court to depart from them must fail.

132 I return to the early stages of Mr Vorchheimer's oral submissions at VCAT. He submitted that VCAT should not proceed to the question of whether 'the land is or may be required for a public purpose' within the meaning of s 99(a)(iii)(B).[226] He stated that Mr Kilpatrick had made an application to the Tribunal under s 80 'to seek the removal or review of conditions'.[227] However, as I have already indicated, the fundamental flaw in that statement is that Mr Kilpatrick was not applying to the Tribunal to seek the removal of the conditions. Rather, he was applying for a review of the conditions in question, and then only on a token basis, as everyone knew. Mr Vorchheimer then said, somewhat remarkably, that, if Mr Kilpatrick wanted the conditions to stay, he could simply withdraw his applications.[228] In that regard, Mr Vorchheimer also said that Mr Kilpatrick had an 'ulterior' purpose for not withdrawing the VCAT applications and not consenting to orders for the removal of the conditions. At the same time, contradicting himself, Mr Vorchheimer said that Mr Kilpatrick had 'made [his purpose of seeking to trigger a compensation claim] quite clear'.[229]

133 Later, Mr Vorchheimer submitted that VCAT should not get to s 99 of the PEA at all. He said that s 99 was 'really a matter for another day', because HTV no longer required the conditions.[230] Mr Vorchheimer observed that it was 'a very odd circumstance' that Mr Kilpatrick was on the one hand applying for review of the imposition of the conditions but, on the other hand, saying that he was now actually seeking to have them remain.[231] Of course, this observation suffered from the same fundamental flaw mentioned above.

134 Indeed, when pressed by the Tribunal, Mr Vorchheimer acknowledged that, in truth, there could never be 'another day' on which the fate of the conditions might come back before VCAT.[232]

135 A constant theme of Mr Vorchheimer's oral submissions, from the outset, was that the VCAT proceeding was very different from the usual, broad kind of review of the merits of an application for a planning permit, such as often involved third party objectors. Mr Vorchheimer kept emphasising that the present case was only a 'conditions appeal', brought under s 80 of the PEA.[233] Importantly, by virtue of the contrast with what HTV now submits in this Court,[234] Mr Vorchheimer downplayed s 84B of the PEA. Having referred the Tribunal to s 84B in no more than a line or two of transcript - saying words to the effect that, generally speaking, s 84B specifies the considerations that VCAT ought to take into account - Mr Vorchheimer said:[235]

... clearly, what we're dealing with here is a very limited review, being a review of conditions. We don't open everything else up.

Thus, it became more and more evident that Mr Vorchheimer's case theory was to seek to persuade VCAT that the only question was whether the conditions should stay or go, and that the answer to that question, for VCAT, was virtually dictated by the announced new position of HTV, as a referral authority, to the effect that HTV no longer required the conditions to be maintained on the permits.[236] It was on this basis that Mr Vorchheimer kept asserting that there was no need for VCAT to consider s 99.[237]

136 Under questioning from the Tribunal, Mr Vorchheimer eventually acknowledged that there was a scenario in which Mr Kilpatrick could prevail at VCAT - albeit, Mr Vorchheimer contended, a most unlikely scenario. Mr Vorchheimer said:[238]

So if you were to find no, despite what the Council has said and despite what [HTV] has said about the imposition of these conditions being that we don't need them and don't want them and they're not necessary, but if you were to go totally against that for whatever reason, and then you said that the reason that you formed that view is on the ground that the land is or may be required for a public purpose, that would then enliven the opportunity for [Mr Kilpatrick] to then make a claim for compensation. That's all it does, it enlivens that. But [Mr Kilpatrick] would need the Tribunal to form that view on that basis in order to trigger it under that head.

Of course, in the end, as will further appear, VCAT did just that.

137 Just before handing over the floor to Mr Morris QC, Mr Vorchheimer referred the Tribunal to PAO5; acknowledged that the purpose of PAO5 was to preserve land for a public purpose; acknowledged that PAO5 was relevant; and submitted that the 'core' question was whether or not the proposed use or development would prejudice the realisation of the purpose of PAO5.[239] Mr Vorchheimer said that it was HTV's case that, in the context of a $3 billion plus proposal (in terms of infrastructure works) 'a couple of houses there won't make an ounce of difference, in our submission'.[240]

138 The Tribunal responded to this remark of Mr Vorchheimer by asking whether it was HTV's submission that, 'if the permits were actually acted upon and the houses were built, that that would be relatively normal and acceptable in terms of the operation of the [Ring Road]'.[241] Mr Vorchheimer did not answer that question directly. He said this:[242]

It won't prejudice the delivery of the Ring Road is what we're [saying] because ultimately we will deal with that...[I]n the normal course... there will always be structures and other things which are present within PAO's and they will be dealt with accordingly and compensated appropriately.

Mr Vorchheimer submitted that one individual dwelling on each of the lots was 'really a drop in the ocean and inconsequential'.[243] Mr Vorchheimer asserted again that HTV did not have a problem with the houses being built. He said that, if the land were required at a future time inconsistently with the presence of houses, then that was a bridge which HTV would have to cross at that time.[244]

139 Next, the Tribunal asked Mr Vorchheimer how close the houses would be to the edge of the road under the arrangements that were proposed. The answer given by Mr Vorchheimer was that matters were in their infancy. He could not identify the alignments or the functional layout plans, because 'that's not been developed'.[245]

140 The Tribunal then invited oral submissions from Mr Morris QC.

141 Mr Morris QC began by foreshadowing that he would be addressing the 'complex' factual background, the role of VCAT and the compensation system under the PEA and the LACA.[246] He said that he would then argue that the appropriate course for VCAT was to 'disallow the application for review on the ground that "the land is required for a public purpose", to utilise the language of s 99'.[247]

142 In accordance with this program, Mr Morris QC proceeded first to the background facts relating to the imposition of the reservation for the Transport Corridor. He took the Tribunal through the (undisputed) factual matters set out in Mr Kilpatrick's pre-hearing VCAT submission and the attachments,[248] correcting one minor historical matter along the way.[249] As mentioned above, the attachments included a diagram of the Kilpatrick property showing the route of the proposed Transport Corridor and the locations therein of the four proposed dwellings.[250] Generally speaking, Mr Morris QC's oral submissions about the factual background were in line with Mr Kilpatrick's pre-hearing VCAT submissions and the attachments.

143 On the other hand, Mr Morris QC addressed in more detail a particular factual question that the Tribunal had asked of Mr Vorchheimer, namely: where would the houses be, relative to the proposed roadway and railway, if the houses were built within the reservation? Mr Morris QC proffered the answer that 'they are most likely to be in the middle of the... northbound carriageway of any new road'.[251] He said that it was 'inconceivable' that the houses, once built, would remain when the Transport Corridor project proceeded.[252] He said that it was inevitable that the families who lived there would have their lives dislocated and that the dwellings would be demolished to make way for the road. I observe that HTV had already been put on notice that this was a point of interest for VCAT, and that Mr Kilpatrick, whose evidence to this point included the abovementioned diagram of his property showing the route of the proposed Transport Corridor,[253] was asserting that the roadway would go right through the houses. Despite this, as I have already mentioned, HTV adduced no evidentiary material of its own on this or any other point. A possible explanation was to emerge later in the VCAT hearing. As indicated in paragraphs [189] and [194] below of this judgment, it turned out that, as far back as November 2020, in the period when Mr Kilpatrick's permit applications were pending before the Council, HTV had complained that there was a lack of clarity about the location of the proposed dwellings in relation to the route of the reservation, and HTV had requested, through the Council, plans showing 'clearly' the route of the reservation in relation to each of the four proposed dwellings. Mr Kilpatrick then promptly supplied four sets of plans in response. It seems that HTV did not, at any time thereafter, complain that there was any lack of clarity in these plans or seek any further information on this point from Mr Kilpatrick or from any other source. After the plans emerged at VCAT, Mr Morris QC attributed to Mr Vorchheimer a concession that the proposed dwellings could not survive if the transport project went ahead; and, in my view, Mr Vorchheimer did in effect make that concession.[254]

144 I go back to what remained of Mr Morris QC's principal oral submissions relating to the factual background. He said that his side was 'extremely surprised' at HTV's approach in this case; and that this was particularly so having regard to the contrast with the manner in which Mr Kilpatrick's previous claims had been dealt with.[255]

145 Next, Mr Morris QC turned to the legal position. He expressed uncertainty as to whether Mr Vorchheimer's case had been put by reference to power or by reference to the wise exercise of discretion. He submitted that, in any event, there was no doubt about the Tribunal's power to make a decision either way; and he submitted that the 'real question' was: 'what is the wise and fair decision in the exercise of the Tribunal's discretion?'[256] In my opinion, as I will further explain in due course, that was indeed the real question.

146 The first statutory provision to which Mr Morris QC referred the Tribunal was s 80 of the PEA. He submitted, correctly and uncontroversially, that the proceedings before VCAT were applications under s 80 for the review of conditions on planning permits.[257]

147 Mr Morris QC went on to say that the next 'critical' question was: 'What does the Tribunal have to consider?' And he answered his own question by saying that this was really set forth in s 84B of the PEA; that the Tribunal had to consider anything that the Council had had to consider; and that the Tribunal was also required to consider the relevant planning scheme and the objectives of planning in Victoria.[258] Mr Morris QC then dealt with the powers conferred on VCAT by s 85 of the PEA.[259] He acknowledged that s 85(1)(e) would empower the Tribunal to make an order of the kind sought by HTV, requiring the removal of the conditions. On the other hand, he submitted that, equally, the Tribunal was empowered by s 85(1)(e) to direct that the permits must continue to contain the conditions. He submitted that such a direction would amount to disallowing the applications for review within the meaning and for the purposes of s 99(a)(iii)(B), and would therefore be sufficient for Mr Kilpatrick's purposes. But, he further submitted, it would also be open to VCAT, instead and quite appropriately, to simply order that the applications for review be 'disallowed' on the public purpose ground; and that this would have the same effect.[260]

148 That brought Mr Morris QC back to the identification of the 'wise and fair decision'.[261] He submitted that the starting point had to be the planning scheme, and, in particular, the relevant overlay (PAO5). He said that the proposed Transport Corridor was a fundamental part of the transport policy framework for Melbourne. He acknowledged that a development such as a hay shed, or a use that was short term or temporary, such as hosting a travelling circus, might be appropriate for the reserved land; but, he submitted, not the building of substantial family residences.[262] He went through the development and use controls in PAO5.[263] He also took the Tribunal to the decision guidelines in PAO5, one of which required the Tribunal to consider the objectives of the PEA and another of which described the purpose of PAO5 as 'major transport infrastructure'.[264] Mr Morris QC noted that the future demolition of the dwellings would involve waste, at least for the public sector, even though the owners of the dwellings might obtain financial compensation.[265]

149 Mr Morris QC then took the Tribunal to clause 71.04 (Operation of overlays) of the Wyndham Planning Scheme.[266] He emphasised the following words from clause 71.04:

Because a permit can be granted does not imply that a permit should or would be granted. The Responsible Authority must decide whether the proposal will produce acceptable outcomes in terms of the municipal planning strategy, the planning policy framework, the purpose and decision guidelines of the overlay, and of any other decision guidelines in Clause 65.

150 Next,[267] Mr Morris QC referred to some of the stated objectives of planning set out in s 4(1) of the PEA.[268] He emphasised two such objectives in particular, namely:

(a) to provide for the fair, orderly, economic and sustainable use, and development of land;

(e) to protect public utilities and other assets and enable the orderly provision and coordination of public utilities and other facilities for the benefit of the community.

151 Mr Morris QC then made some general submissions about the law of compensation for the compulsory acquisition of land.[269]

152 Next, Mr Morris QC went through the provisions of ss 98 and 99 of the PEA, making submissions about how those provisions work together.[270]

153 After that,[271] Mr Morris QC made the abovementioned modification of what had been contained in paragraph 48 of Mr Kilpatrick's pre-hearing VCAT submissions with respect to the appropriate formal disposition of the applications for review. Mr Morris QC said that, on reflection, Mr Kilpatrick sought only an order in each proceeding that the application for review be disallowed on the ground that the land is or may be required for a public purpose. He said that there was no need for more. He said that such an order would have two consequences: firstly, that the four permits would stand as they were, unchanged; and, secondly, that Mr Kilpatrick would have a trigger to claim compensation under the PEA.

154 Mr Morris QC then[272] took the Tribunal to the judgment of JD Phillips J in City of Nunawading v Day ('Day'),[273] given in 1990. Mr Morris QC observed that Day was a detailed, long and complex decision; that its ratio decidendi was that if a person seeks to claim compensation by reference to s 98(2) of the PEA, the refusal of the permit must be by the responsible authority as distinct from the Tribunal; and that Day contains obiter dicta relating to s 99(a)(iii)(B) of the PEA. I need not decide whether Mr Morris QC was correct to concede that any or all of the statements made about s 99(a)(iii)(B) in Day were mere obiter dicta. Mr Morris QC cited what he called the obiter dicta for the propositions that:

(a) section 99(a)(iii)(B) of the PEA gives rise to an 'indirect amplification' of s 85(1)(e) of the PEA;

(b) there is no doubt that the Tribunal has power, in an application for review brought under s 80 of the PEA, to do the very thing that s 99(a)(iii)(B) expressly assumes that the Tribunal can do; and

(c) where the application for review is brought on a test or token basis, it is proper for the Tribunal to take into account the compensation context in determining the application for review.

Later, both before VCAT and before me, HTV did not accept, or did not always accept, that Day provides significant support for those propositions.[274] However, in my opinion, as I have already indicated,[275] and as I will further explain in due course,[276] it does.

155 Next, Mr Morris QC made the point (which, as mentioned above, Mr Vorchheimer had already, though belatedly, conceded) that Mr Kilpatrick could not come back to the Tribunal at a later stage for a decision or ruling as to whether the conditions in question should remain or not.

156 Returning to the question of what was the wise and fair way to exercise the Tribunal's power in the present case, Mr Morris QC stated that Mr Kilpatrick had owned the farm for decades, had an emotional attachment to it, did not wish to sell it and did not want to lose it until he had to lose it.[277] Mr Vorchheimer did not, at this stage, or ever, challenge this statement of Mr Morris QC or require that it be further verified.

157 Mr Morris QC then went back to Day. He submitted[278] that in Day it had been put by Mr Robert Osborn (who was then an experienced planning barrister and who later became a Judge of this Court and the Head of the Valuation, Compensation and Planning List of this Court and subsequently a Justice of Appeal) that it was a 'common practice' to make a token permit application in order to have it refused, with a view to making a subsequent claim for compensation. (Indeed, in Day, on my reading of the judgment, it had been accepted on both sides that the making of test or token permit applications as a precursor to mounting a compensation claim was a common practice).[279] Mr Morris QC submitted that what Mr Kilpatrick had done in the present matter was the same, and therefore that it was sanctioned by a long established understanding of the proper operation and application of the relevant legislative provisions. As I have mentioned, Mr Vorchheimer, in effect, ultimately accepted that test or token applications are legitimate.[280]

158 So far as presently relevant, the next point made by Mr Morris QC was that, contrary to Mr Vorchheimer's submissions, Mr Kilpatrick's position had not changed at all, whereas the position of HTV had changed considerably.[281]

159 Then, in answer to a question from the Tribunal, Mr Morris QC submitted that the fact that the permit conditions had been 'not acceptable' to Mr Kilpatrick within the meaning and for the purposes of s 99(a)(iii)(B) of the PEA did not mean that Mr Kilpatrick would now wish to have them excluded from the permits.[282] Mr Morris QC said that, given the test or token nature of the original applications for permits, that simply did not follow. Rather, he explained, Mr Kilpatrick had applied to the Tribunal to review the conditions in order to have the Tribunal disallow the applications on the ground that the land 'is or may be required for a public purpose'.[283]

160 The Tribunal sought further clarification of this. Mr Morris QC then submitted that whether or not a condition was 'not acceptable' to a permit applicant was a matter for the permit applicant, not a matter for anyone else.[284] Mr Morris QC then squarely told the Tribunal, on behalf of Mr Kilpatrick, that the conditions were not acceptable to Mr Kilpatrick.[285] Mr Morris QC submitted that that was enough to establish that the Tribunal had power to disallow the applications for review on the posited ground.[286]

161 The Tribunal was still having some difficulty, at this stage, in grasping what Mr Morris QC was saying. Thus the Tribunal asked Mr Morris QC whether 'you're now both telling me that you support the conditions being deleted?'[287] Mr Morris QC replied: 'No, I'm saying that the deletion of the conditions would be inappropriate because the appropriate course is to disallow the application for review'.[288] Mr Morris QC acknowledged that it seemed a little counter-intuitive to apply for something and then say to the Tribunal that the Tribunal should disallow the application. But, Mr Morris QC said, the design of the (complex) legislation anticipated that very thing: it provided a benefit for a person who applied for something and then had it refused or the application disallowed. That was the 'essence' of the point.[289]

162 There was then an exchange between the Tribunal and Mr Morris QC upon which, before me, HTV now seeks to rely. The Tribunal asked Mr Morris QC whether his case 'at its highest' was that, if the Tribunal was satisfied that it could make a 'required for a public purpose type order' then that was literally all that Mr Morris QC was asking the Tribunal to make. Before Mr Morris QC could answer, the Tribunal mentioned the 'updated' version of paragraph 48 of Mr Kilpatrick's pre-hearing VCAT submissions,[290] and then said:[291]

... you're not actually asking me as you would usually expect in a conditions appeal, you're not asking me to make any orders about whether or not those three conditions stay or go. All you're asking me to do is just make a required for a public purpose type order. Does that sound right?

That is correct, and I wouldn't say it's our case at the highest, that's our case.

163 I would emphasise the use by VCAT in this exchange of the words 'orders' and 'order'. That usage tends to indicate that the Tribunal was merely inquiring about the appropriate form of order to make if the Tribunal was with Mr Kilpatrick on the (single) substantive issue in the case, namely whether or not it was wise or fair or appropriate for the Tribunal to authorise the building of the residences within the reservation for the Transport Corridor - in other words, whether the conditions in question should 'stay or go'. The context of the exchange points strongly in the same direction. Mr Morris QC had already spoken at length about the facts and the planning considerations relevant to the question of whether it was wise or fair or appropriate for the Tribunal to allow the residences to be built within the reservation. And, as soon as this exchange concluded, Mr Morris QC went back to those substantive matters, as I will outline in a moment. So, contrary to the submissions later made to me on behalf of HTV, the exchange in question when read in context does not indicate that the Tribunal proposed to ignore, or to give no substantive consideration to, the issue of whether or not to authorise the building of the residences within the reservation for the Transport Corridor. In other words, the exchange does not indicate that the Tribunal proposed to ignore, or to give no substantive consideration to, the question of whether the conditions should 'stay or go'.

164 Moreover, as will be seen in due course, the reasons for decision which the Tribunal later published confirmed, beyond doubt, that the Tribunal in fact went on to give substantive consideration to the issue of whether or not it should authorise the building of the residences within the Transport Corridor, i.e. in effect, whether the conditions should 'stay or go'.

165 In those circumstances, as will further appear, the main foundations for HTV's case in this Court collapse.

166 I come now to the submissions made by Mr Morris QC immediately after the exchange just discussed. Mr Morris QC returned to 'the wise and fair disposition' of the applications for review, which he described as being a matter of discretion, guided by what was in the planning scheme and the PEA.[294] He spoke about 'orderly planning', as referred to in s 4(1)(a) of the PEA,[295] and as picked up by clause 65 of the planning scheme. He submitted that the purpose of the overlay was significant; that the overlay was for a major transport project; and that this purpose would be a factor in deciding whether, having regard to the requirements of orderly planning, the developments sought under the permits (namely the residences) were appropriate. He then turned to three specific aspects of the transport project, namely its nature, its importance and its timing. As to its nature, he submitted that the road and rail corridor would require everything in its path to be removed.[296] As to its importance, he submitted that PAO5 was one of the most important overlays for public acquisition in the State of Victoria and, to reinforce that submission, he went through some of the abovementioned documents attached to Mr Kilpatrick's pre-hearing VCAT submission.[297] He highlighted the abovementioned statement by Infrastructure Victoria that its strategic assessment indicated a 'compelling case' for the road component of the project. He mentioned also the estimate by Infrastructure Australia that the cost of preserving the Transport Corridor was in the order of $2.3 billion. In addition, he mentioned the submission made to Infrastructure Victoria by the Council about the importance of the project to the City of Wyndham. As to timing, he said that there was some uncertainty. He gave examples from other infrastructure proposals in Victoria. He submitted that it would be irresponsible to dismiss the prospect of the project being delivered in the medium term i.e. within five to twenty years.

167 Summarising these submissions, Mr Morris QC said that the nature, importance and timing of the Transport Corridor project were such that it would be contrary to orderly planning, and irresponsible, to allow the use of the land in question for dwellings; and all the more so for dwellings that would be within the northern alignment of the proposed road.[298]

168 Next, Mr Morris QC pointed to HTV's previous stance (requiring the conditions) and to the contemporaneous statements that HTV had made in support of that previous stance.[299]

169 Mr Morris QC went on to make some colourful submissions about HTV's change of position. He called it a 'backflip'. He observed that the permit conditions which, according to HTV's previous position, had been 'wholly appropriate' to include, were now, apparently, such as did not need to be included at all.[300] He said that it 'beggars belief' how such a backflip could be made, in the circumstances, by reference to orderly planning. He said that there was really only one explanation for it, namely that HTV was engaging in 'a game of chicken or bluff'.[301] He submitted that, in the end, HTV was calculating that Mr Kilpatrick would not in fact build the houses if the conditions were removed. He submitted that a game of bluff in poker or playing chicken on the road might be fine for some people, but that any comparable behaviour by a statutory authority would be an 'irresponsible exercise of public power'. He submitted that, in effect, that was what HTV was doing here.[302]

170 Mr Morris QC then contrasted the present case with what he referred to as efforts made in the past to minimise the compulsory acquisition of homes in connection with other, specified road projects in Victoria.[303]

171 Next, Mr Morris QC read parts of a glowing obituary for a recently deceased public official who, Mr Morris QC said, had tenaciously protected the reservation for what became the highly praised Geelong Ring Road.[304] Mr Morris QC urged Senior Member Martin to draw inspiration from that example, and to put 'the public interest' ahead of 'avoiding or postponing the payment of compensation'.[305]

172 Mr Morris QC gave more examples of the kinds of uses or developments that, in his submission, might be appropriate or inappropriate to allow, pending the acquisition of land reserved for an important future route for vehicles, including trucks and trains.[306] He instanced cropping and grazing as appropriate uses, and timber plantations and family residences as inappropriate developments.[307]

173 Mr Morris QC mentioned the hundreds of millions of dollars already spent on compensation for this reservation, indicating the strength and the depth of the public commitment to the proposed Transport Corridor.[308]

174 Next, Mr Morris QC addressed some of the submissions that had been made by Mr Vorchheimer.

175 Mr Morris QC reiterated that VCAT had the necessary power to make a decision either way.[309] He submitted that Mr Vorchheimer should not have been 'surprised' that Mr Kilpatrick did not accept HTV's 'concession'. He said that, by contrast, Mr Kilpatrick was entitled to be surprised, and was surprised, at HTV's change of position.[310] He said that, as had been explained in Day, the wording of s 99 of the PEA implicitly gave the Tribunal the power to do the things that are referred to in s 99, including to 'disallow' the conditions appeal.[311]

176 Mr Morris QC observed that Mr Vorchheimer had not given any example of a dwelling being allowed to be built in Victoria on the site of a proposed major infrastructure project of State importance such as the proposed Transport Corridor.[312] I interpolate that, indeed, Mr Vorchheimer had not given any such example. Nor did he do so thereafter, notwithstanding that, at this point of the hearing, Mr Morris QC had explicitly invited him to do so if he could.[313] Further, Mr Morris QC stated that he himself had done 'probably 10' cases relating to the proposed Transport Corridor itself, and that no dwelling had ever been allowed in any of those cases.[314]

177 Mr Morris QC denied that Mr Kilpatrick had an 'ulterior' purpose. He submitted that making permit applications, and making applications for review of conditions, to trigger a claim for compensation was 'done regularly' and was 'not unusual'.[315] I note again that Mr Morris QC had extensive experience upon which he was able to draw in making that submission.

178 Mr Morris QC concluded by submitting that the appropriate course for VCAT to take was to order that the four applications for review be disallowed on the ground that the land 'is or may be required for a public purpose'. He reiterated that the consequences of the making of such orders would be that the relevant planning permits as issued would stand, and that a trigger would exist for Mr Kilpatrick to claim compensation for the loss he had suffered by reason of the imposition of the reservation upon the land in question.[316]

179 Next, the Tribunal put some questions to Mr Vorchheimer in advance of his reply submissions.

180 First, the Tribunal raised again the question of exactly where the houses would be, relative to the dimensions of the reservation.[317] The Tribunal observed that there was apparently a gap between the parties on this; and that Mr Vorchheimer's previous answer to the question was 'fairly general'. The Tribunal noted Mr Morris QC's contention that the houses would effectively be in the north bound lane of the freeway. The Tribunal pointed to the abovementioned diagrammatic summary of the Kilpatrick property titles[318] and commented that the reservation did not seem to be very wide. The Tribunal referred to 'a real issue' about the proximity of the freeway and possibly the railway. The Tribunal also referred to Mr Morris QC's further contention that the proposed houses could not escape demolition if the project went ahead. With that lead up, the Tribunal asked Mr Vorchheimer whether he was putting to the Tribunal that there was a 'realistic prospect' that, if the houses were built as currently shown on the diagrammatic summary and the project went ahead, the houses could remain where they were.

181 In a response which occupied about three and a half pages of transcript, Mr Vorchheimer ducked the question again.[319] He said, in effect, that the question was not the right question. He said that s 99 of the PEA should not inform consideration of the applications for review; and that, rather, what mattered was that HTV, as the road authority and the acquiring authority, had now made a judgment that the development of the four houses in the locations shown 'will not impact on the deliverability or the future operation of that roadway or that particular area...' To inquire as to whether the houses would need to be removed at some unknown time in the future was, Mr Vorchheimer submitted, 'beyond' what was before VCAT. Citing cl 18.01 of the planning scheme, he claimed that the new applicable policy was about 'impacting deliverability'.[320] He said that that was the question that had been considered by HTV. He submitted again that it would be a very bold decision to go against the call made by HTV on this.

182 While still purporting to answer this question, Mr Vorchheimer then made some comments that were at least consistent with Mr Morris QC's suggestion that, in changing its position, HTV was playing a game of bluff or chicken based on a realisation that Mr Kilpatrick had no actual intention of building the proposed residences. Mr Vorchheimer said this:

So, with respect, in answer to your question, it may be at some future point in time if, and I say, if, [Mr Kilpatrick] decides to build the dwellings, noting full well, that they said quite clearly that their intention has never been to build the dwellings despite the application saying we are applying for a dwelling, but if they decided to and they were occupied, and 20, 30, whatever the years down the track the road is constructed, they will be a consideration at that juncture.

For the time being, the Tribunal left Mr Vorchheimer's response to this question at that.

183 Then, the Tribunal put to Mr Vorchheimer that Mr Morris QC had said that there was a long standing practice in Victoria to make a test or token application for a permit. The Tribunal also put that, according to Mr Morris QC, 'in some ways' the 'big ticket issue' was not the planning merits or the conditions, but rather whether, by reference to s 99(a)(iii)(B) of the PEA, the Tribunal should disallow the applications for review on the ground that the land 'is or may be required for a public purpose'.[321]

184 Again, Mr Vorchheimer gave a lengthy answer to the question.[322] He said, among other things, that the fact that an application is 'often' made to try and trigger compensation did not mean that every applicant had to succeed. He referred again to the importance of the views of the acquiring authority in relation to preventing the 'deliverability' of the asset or project at hand. Mr Vorchheimer said that the houses did not cover 'the whole of the reservation'. He mentioned again that the proposal was not for a sub-division or for multiple dwellings on each title. He acknowledged that in the past applications had been made to try to trigger compensation. But he kept coming back to the proposition that the referral authority had conceded that the conditions did not need to be applied. He submitted that the Tribunal should not 'read down' what needed to be considered under ss 80 and 84B of the PEA by reference to s 99. The primary consideration, he submitted, was whether or not the conditions ought, or ought not, be imposed. He then reverted to the supposed contrast between Mr Kilpatrick saying that the conditions were not acceptable and then suggesting that they ought to remain. He acknowledged that if the conditions were allowed to stay on the permits, then 'effectively it's a disallowance of the application'.[323] But, he went on to say, if the Tribunal did not agree with Mr Kilpatrick about the conditions, then the Tribunal would not even get to the question about public purpose. He submitted that s 99 should not inform the decision.[324]

185 Mr Vorchheimer then added, as a 'final point', that HTV saw this case as a 'very significant matter'. Mr Vorchheimer urged the Tribunal to be cautious, rather than bold.[325]

186 There was then some more toing and froing between the Tribunal and Mr Vorchheimer about the meaning and operation of s 99 of the PEA.[326]

187 Next, the Tribunal told Mr Vorchheimer that he would need to respond to what Mr Morris QC had said about Day. Mr Vorchheimer said that the reliance by Mr Morris QC on Day had taken him somewhat by surprise and that he would need some time to respond. That led to a suggestion that there should be written submissions by the parties on Day.[327] Again, Mr Vorchheimer asserted that the present case was a 'very significant matter' and a 'potential precedent'.[328] However, he did not seek leave to adduce any further evidentiary material or to make further submissions on any matter except the matter of the significance of Day.

188 The Tribunal then turned to Mr Morris QC, who said that he was happy to accommodate written submissions about Day. Mr Morris QC added that he wished to make it clear that his reliance on Day was to support the proposition that s 99 'informs the powers that the Tribunal has'.[329] Mr Morris QC added:[330]

As to the question of how that power is exercised, my submission is that the first place you go is s 84B and then to the objectives of the Act, to the planning scheme, to clause 65 and so forth.

189 Mr Morris QC then returned to the matter of the location of the dwellings in relation to the reservation for the Transport Corridor.[331] Mr Morris QC asserted that the question that Mr Vorchheimer 'didn't want to answer' was partly answered by reference to a 'request for information' that HTV had issued to the Council (actually, it seems, a set of four relevantly identical written requests for information, one for each permit application). As mentioned above,[332] in November 2020 HTV had requested, in relation to, it seems, each permit application, a plan which 'clearly shows' PAO5 in relation to the proposed dwelling development. Mr Morris QC told the Tribunal that, in response to the request for information, sets of development plans for each of the dwellings had been produced. The relevant plans in each set had been marked up with green lines to indicate the path of the reservation, and the whole had then been submitted to the Council by Mr Kilpatrick and passed on to HTV. Mr Morris QC took the Tribunal to one marked-up set of plans as a sample. This was tendered to VCAT (remotely) as part of Mr Kilpatrick's case.[333] (Immediately after the VCAT hearing, a small bundle of copy emails and attachments, including a further copy of the sample marked-up set of plans, and including also the corresponding written request by HTV for information, was provided to VCAT and became part of the material before it).[334] Mr Morris QC acknowledged that PAO5 was a fairly wide reservation - wider than would normally be expected for a road - but said that that was because the reservation was designed to accommodate a railway as well as a road. Mr Morris QC then accused Mr Vorchheimer of failing, again, to answer the question and of seeking, rather, to avoid it.[335] Mr Vorchheimer did not ask to be further heard in relation to that matter at that stage.

190 Soon after, the Tribunal itself observed that Mr Vorchheimer had been asked two or three times to give an assurance that, if the buildings were built, they would be compatible with the outer ring road being built, 'and he hasn't given me an answer to that'.[336] The Tribunal also observed that, when driving around on freeways, one did not see many dwellings right on the edge of the reservation area.

191 Mr Vorchheimer did then make a response of sorts, but, once again, it was not really an answer to the question asked. He said again that there was no final design for the road. He said that he had been assured by his instructors that what had been proposed by way of houses would not affect the deliverability of, or the ability to construct, the road at the ultimate point in time. He mentioned that sometimes a driver on a freeway would not observe things because they are behind noise walls. He repeated that HTV did not see that the proposed dwellings would impact on the deliverability of what was being proposed in the reservation. He finished on this point by saying that that was all he could say.[337]

192 Next, there was yet more discussion between the Tribunal and Mr Vorchheimer about the proper interpretation and operation of s 99.[338]

193 Then, after a short adjournment, Mr Vorchheimer said that he wished to mention a matter upon which he had taken further instructions. He said this:

...my instructions are that the Department considered the application on its merits. The application that went before the Council did not elicit or suggest that it was an application made purely to trigger compensation. It was judged on the merits of a dwelling on each of the properties, and indeed, the reconsideration of the conditions by [HTV] was on the basis of purely that, seeing whether or not those dwellings would be allowed and allowable, and impact or otherwise the delivery of any infrastructure within the PAO.

Once again, this comment was surely unhelpful to HTV's case at VCAT; and it is unhelpful to HTV's case in this Court. If HTV had truly failed to perceive, initially, that Mr Kilpatrick's planning applications to the Council were merely test or token applications, then that would support Mr Morris QC's suggestion that, when HTV later proposed that the conditions (which it had previously mandated) be removed, HTV only did so after becoming sufficiently sure that Mr Kilpatrick did not actually intend to construct the dwellings. In any event, in all the circumstances, including the prior history relating to other parts of Mr Kilpatrick's farm and the absence of any evidentiary material from HTV about its changing positions, VCAT would have been well entitled:

(a) to reject Mr Vorchheimer's assertion that HTV did not appreciate, initially, that the permit applications were token in nature;

(b) to conclude that HTV was aware from the very beginning, or at least from a very early stage, that Mr Kilpatrick's planning applications to the Council were of that nature; and

(c) to conclude that HTV was simply determined from the beginning, or at least from a very early stage, to avoid, by one means or another, liability for compensation of the kind sought by Mr Kilpatrick, regardless of the merits of Mr Kilpatrick's position.

And in fact, as mentioned above and as will be further seen, VCAT later said in its reasons that it did not accept that HTV had come to VCAT with 'clean hands' in relation to HTV's position about the nature of the VCAT proceedings.[339] VCAT said that the 'strong indications' were that 'from very early in the processing of the four planning permit applications', HTV was 'very alive' to the 'compensation implications'; and that this 'overtly flavoured' HTV's response as a determining referral authority.[340]

194 Finally, Mr Morris QC gave some more details about the request for information that had been instigated by HTV, requiring plans showing precisely where the reservation was in relation to the proposed dwellings. Mr Morris QC observed that this had been provided; that 'the plan' had been replicated in the Council officers' report; and that the plan showed one of the dwellings being some 30 or 40 metres to the south-east of the western edge of the alignment, 'or to use my more colourful language, right in the middle of the northbound route'. Mr Morris QC then submitted that in those circumstances any claim by HTV that the building of the houses was compatible with PAO5 could not be based upon any proposition that the houses would remain when the road came to be built. Mr Morris QC described the idea that one could hide the houses behind a noise wall as being 'fanciful'. Mr Morris QC then observed that he did not think that 'what he had just been saying' was inconsistent with the way that Mr Vorchheimer had put his case.[341] Mr Vorchheimer did not dissent. As I read this part of the VCAT transcript, Mr Morris QC was attributing to Mr Vorchheimer a concession that the construction of the transport project would be incompatible with the preservation of the proposed dwellings.[342] In my view, Mr Vorchheimer had indeed, in effect, made that concession.

195 That left only the setting of a timetable for written submissions on Day, subject to which Senior Member Martin reserved his decision.

196 On or about 17 February 2022, HTV filed at VCAT, and served on Mr Kilpatrick, a nine page set of written submissions, prepared by Mr Vorchheimer, pursuant to the leave reserved by VCAT with respect to the significance of Day.

197 At the outset, by way of summary, it was put that Day did not assist Mr Kilpatrick; and that, rather, Day confirmed that s 99(a)(iii)(B) of the PEA 'is nothing more than a consequence of the Tribunal's power to deal with a conditions appeal under s 85(1)(e) of [the PEA]'. Those quoted words were elucidated by later parts of the written submissions, such as to indicate that it was HTV's contention that VCAT should deal with any s 80 application for review by reference principally to the provisions of ss 84B and 85 of the PEA, but not by reference to the provisions of s 99. According to the submissions, s 99 merely identified a particular consequence (relating to compensation) that may follow from, but only after, VCAT has duly performed its functions and exercised its powers under ss 80, 84B and 85 of the PEA.

198 It is not necessary for me to refer in detail to the arguments relating to the effect of Day that were set out in HTV's post-hearing VCAT submissions, because those arguments were overtaken by the debate about Day that occurred in this Court. However, I note that Day was referred to in the judgment of the Court of Appeal in Mason v Head, Transport for Victoria,[343] given in 2021. In paragraph [26] of HTV's post-hearing VCAT submissions, it was asserted that, in Mason, the Court of Appeal had disagreed with certain observations that had been made by JD Phillips J in Day. However, in the same paragraph, HTV conceded (in my view, correctly) that any such disagreement did not relate to the particular observations of JD Phillips J on which Mr Morris QC had relied at the oral hearing.

199 Further, I note that, in purporting to set out relevant background, HTV's post-hearing VCAT submissions attributed to Mr Kilpatrick a contention that he did not advance. They attributed to him the contention that a token planning permit application 'may be assessed on the basis of what is requested by the permit applicant (i.e. the refusal of the application), rather than on the planning merits of the application itself'.[344] Within the same (background) section of these submissions, HTV had given transcript references for other things it attributed to Mr Kilpatrick. However, no transcript reference was given for this one. That is not surprising. In fact, no such contention had been advanced on behalf of Mr Kilpatrick. Quite the opposite. On Mr Kilpatrick's behalf, as indicated above, Mr Morris QC had submitted repeatedly to VCAT that the task before VCAT was to exercise its discretion in a wise and fair manner. He had urged VCAT to act in accordance with what VCAT considered to be the merits, including the planning merits; and, in particular, to determine whether or not it was appropriate for the reserved land to be developed for dwellings. Mr Morris QC had addressed the planning merits of this choice in considerable detail, albeit contending that those merits were all one way. It is true that Mr Morris QC had at the same time submitted to VCAT that, in considering the appropriate order to make, VCAT should have regard to Mr Kilpatrick's wish to enliven a claim for compensation; should consider whether or not the land in question 'is or may be required for a public purpose' within the meaning of s 99(a)(iii)(B) of the PEA; and should decide whether or not the applications for review should be disallowed on that ground. In my view, as I have already indicated and as I will explain further in due course, there was no legal error in what Mr Morris QC had submitted to VCAT in this regard.

200 In passing from HTV's post-hearing VCAT submissions, I note again that, in paragraphs 27 and 34 thereof, HTV (through Mr Vorchheimer) conceded that mere formal (i.e. test or token) planning applications were valid and appropriate under the relevant legislation, and that Mr Kilpatrick's 'request' to have the s 80 applications for review 'disallowed' was not 'in any way improper'.[345]

Mr Kilpatrick's post-hearing VCAT reply submissions

201 On or about 21 February 2022, Mr Kilpatrick filed at VCAT, and served on HTV, a six page set of written submissions in reply, prepared by Mr Morris QC and Mr Chiappi, pursuant to the leave reserved by VCAT with respect to the significance of Day.

202 In short, Mr Kilpatrick's post-hearing VCAT reply submissions contended that Day was helpful to his cause. It was submitted that Day supported the view that VCAT should, in a s 80 review, take into account the statutory compensation framework enacted by Part 5 of the PEA, and in particular, in the present case, should take into account the terms of s 99(a)(iii)(B).

203 For reasons corresponding to those I have expressed above relating to the arguments about Day set out in HTV's post-hearing VCAT submissions, it is unnecessary for me to rehearse the arguments set out in Mr Kilpatrick's reply document in support of his position on Day. However, I would note that, in paragraph [15] of the reply document, Mr Kilpatrick made the abovementioned point that, in paragraph [26] of HTV's post-hearing VCAT submissions, HTV 'acknowledged' that the comments of JD Phillips J in Day on which Mr Kilpatrick relied were not inconsistent with, let alone overridden by, anything said in Mason. I reiterate that, in my view, HTV's acknowledgement was correct.

204 I note also that, in paragraph [11] of the reply document, Mr Kilpatrick made the point that HTV's post-hearing VCAT submissions had mischaracterised his case in the way to which I have referred above.

205 Consistently with the oral submissions that had been made by Mr Morris QC, Mr Kilpatrick's post-hearing VCAT reply submissions concluded with a proposal for a form of order to the effect that the relevant applications 'are disallowed on the ground that the land is or may be required for a public purpose'.

206 On 11 May 2022, VCAT published a 23 page document dealing with the four applications for review.[346] It was in three parts.

207 The first part (of three pages) comprised a general heading (including the relevant VCAT reference numbers), a set of catchwords, some further identifying case details, a section entitled 'ORDER' (with a paragraph for each of the four applications for review), a section entitled 'APPEARANCES', and a section entitled 'INFORMATION'.

208 Having regard to the issues before me, it is desirable to set out the following extracts from the first part of VCAT's decision document:

CATCHWORDS

Wyndham Planning Scheme; application on each of four lots for the use and development of a dwelling; each lot zoned Green Wedge Zone but also partially affected by a Public Acquisition Overlay Schedule 5; permit granted for each lot but subject to certain contentious permit conditions in essence requiring that the proposed dwelling be relocated away from the PAO5 area; at the Tribunal hearing the applicant seeking a 'application is disallowed' ruling pursuant to Section 99 of the Planning and Environment Act 1987; dispute whether the Tribunal can even entertain making such an order and if so, whether it should be made.

...

ORDER

APPLICATION P937/2021

1. This application is disallowed on the ground that the subject land is or may be required for a public purpose.

APPLICATION P948/2021

1. This application is disallowed on the ground that the subject land is or may be required for a public purpose.

APPLICATION P949/2021

1. This application is disallowed on the ground that the subject land is or may be required for a public purpose.

APPLICATION P951/2021

1. This application is disallowed on the ground that the subject land is or may be required for a public purpose.

...

INFORMATION

Nature of proceeding It was hotly contested as to how the proceeding should be properly characterised/dealt with. The VCAT Application for Review includes the following statement - "Review of permit conditions 1(a), 12 and 14 on the basis that these conditions are not acceptable to the Applicant, pursuant to Section 99(a)(ii)(B)[347] of the Planning and Environment Act 1987 (Vic)".

...

209 The second part (of 14 pages) of VCAT's decision document was entitled 'REASONS'. I will come back to it in a moment.

210 The third part (of seven pages) of VCAT's decision document was entitled 'APPENDIX'. As mentioned above, the appendix was a copy of Mr Kilpatrick's pre-hearing VCAT submissions (dated 24 January 2022).[348] I have already referred to those submissions in detail.[349]

211 Coming back to the section headed 'REASONS', I note again that HTV argues in this Court that VCAT omitted to take various things into account.

212 However, as I have pointed out above,[350] Senior Member Martin indicated several times that he accepted the matters of context and background set out in Mr Kilpatrick's pre-hearing VCAT submissions. Those matters of context and background are sufficiently covered above.[351] Further, very early in his reasons, Senior Member Martin said that, for the sake of readability and clarity, he would seek to avoid being 'bogged down with covering a lot of background aspects/more peripheral matters';[352] and that he would aim to 'cut through the detail' and set out his 'main findings'.[353] In addition, the following is stated in footnote 1 of VCAT's reasons:

The submissions and evidence of the parties, any supporting exhibits given at the hearing, and the statements of grounds filed; have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

213 Soon after,[354] VCAT expressly referred to the relevant planning instruments and summarised their effects.

214 Unfortunately, due to the nature of the attacks made by HTV on VCAT's decision, it is necessary for me to set out most of the remainder of VCAT's reasons verbatim, or almost verbatim, notwithstanding that, as a result, this judgment will be further lengthened. I will need to begin quoting at the point immediately following paragraph [15] of VCAT's reasons. Any obvious but inconsequential typographical or like errors will be corrected. Certain statutory references and references to HTV will be altered to conform with the style already adopted in this judgment. All of these changes will be indicated by square brackets. One or two other minor slips in the Reasons will be mentioned. Footnotes 2-7 inclusive of VCAT's reasons will be included, but renumbered. Footnotes 8 and 9 will be omitted for want of sufficient present significance.[355] So far as practicable, VCAT's italicisations, underlining and use of differing type fonts will be reproduced. VCAT wrote:

Summary of the position of the parties and the three key issues arising

1. Council indicated from the outset of the hearing that it did not take any particular position before me, but is content for the Tribunal to [make] its decision as the Tribunal sees fit. This is bearing in mind that the contentious conditions were not imposed by Council, but by [HTV] as a determining referral authority.

2. In summary, [HTV] submitted at the hearing that the Tribunal must treat these overall proceedings as being very confined - nothing more or less than an ordinary 'conditions appeal' for the contentious conditions, pursuant to [s 80(1)] of the [PEA]. Following this line of thinking:

• It is misguided and inappropriate for the Tribunal to treat the combined proceedings before me as having any 'compensation' aspect to it.

• The Tribunal must do no more or less than making ordinary planning merits findings on the contentious permit conditions.

• Where HTV is no longer seeking to justify the contentious permit conditions, the Tribunal should simply direct that each of the four permits be issued in a modified form, with the contentious conditions removed.

1. By contrast, the applicant submitted at the hearing that [he] had only lodged [his] four permit applications for the use and development of a dwelling (for each of the four lots) so as to enliven the relevant jurisdiction under Part 5 of the [PEA] to be able to make a compensation claim. Following this approach, because each proposed dwelling lies within the PAO5 area associated with the proposed outer ring road:

• It is appropriate and valid per se for this proceeding to consider whether the applicant has triggered the 'compensation' process under Part 5 of the [PEA].

• The very fact that the contentious conditions are considered 'unacceptable' by the applicant and that these four proceedings are now before the Tribunal gives the Tribunal the discretion to potentially make an order pursuant to Section 99(a)(iii)(B).

• The site of each proposed dwelling is in each case clearly land which "...is or may be required for a public purpose"[356] i.e. the future public purpose of the intended outer ring road, as per the reservation.

• It is appropriate and reasonable in these circumstances for the Tribunal to 'disallow each application', as provided for in the final paragraph of Section 99(a)(iii).

1. The applicant also argued that it made no practical difference to [his] fundamental submissions that by the time of the hearing before me, [HTV] was no longer contesting the contentious conditions.

2. I see three key issues arising here, being:

• At a basic level, is there any inherent bar or prohibition to the Tribunal potentially making a 'disallow the application' type of order pursuant to Section 99 of the [PEA]?

• If not, at a more detailed level, should such a 'disallow the application' order be made for the four applications on foot here?

• What role (if any) do the Day and Mason Supreme Court decisions play here?[357]

1. I will tackle these three key issues, in the order I have set them out, after briefly summarising the 'statutory and case law context'.

Statutory and case law context

1. A helpful summary of the 'statutory compensation regime' is set out at [22-27] of the applicant's main submissions and I do not need to repeat same here. However it is worth repeating [26] which reads as follows:

Section 99 provides that the right to compensation and the liability of an authority to pay compensation arises in various circumstances. These include where:

(a) a responsible authority has refused to grant a permit for development on the ground that it is or may be required for a public purpose [(s 99(a)(i)];

(b) the Tribunal directs that a permit must not be granted on the public purposes ground (s 99(a)(ii)); or

(c) the Tribunal disallows an application for review of a condition on the public purpose ground (s 99(a)(iii)(B))...

1. I have set out [Section 99(a)(iii)] in full below, as it is highly relevant here:

(iii) the responsible authority-

• (A) fails to grant a permit within the period prescribed for the purposes of section 79; or
• (B) grants a permit subject to any condition which is not acceptable to the applicant-

and the Tribunal disallows any application for review of the failure or condition on the ground that the land is or may be required for a public purpose.

1. There was a consensus at the hearing that, to the best of the legal research done by [HTV] and the applicant but with one proviso, there is no known previous tribunal or higher court case directly on point here i.e. specifically dealing with Section 99(a)(iii)(B) of the [PEA].

2. The proviso was that there was some discussion of the case of City of [Nunawading] v Day [1992] 1 VR 211, where the Victorian Supreme Court made some obiter comments that the applicant submitted were still supportive of its case.

3. I shall now return to the three key issues.

At a basic level, is the Tribunal in the circumstances here inherently barred/prohibited from potentially making a 'disallow the application' order?

1. Most of the main written submission of [HTV] focuses simply on whether or not the contentious conditions should be deleted. However at [24]-[25] of that document, [HTV] made the following submissions:

2. The Applicant's statement of grounds sought an 'order' that the Applications be disallowed on the basis that is detailed in s 99(a)(iii)(B) of the [PEA]. There is no application on foot for such an order, if one can be made at all. Section 99(a)(iii)(B) applies only to the underlying reason for which a decision is made by the Tribunal, and it can be engaged only in circumstances where the Tribunal disallows an application for review. The relevant 'application for review' in this circumstance is, as detailed above, the Applicant's Applications pursuant to s 80(1) of the Act.

3. It follows that if, as all parties contend, the Applications are allowed, the Tribunal need not concern itself with s 99 of the Act. For completeness, it is [HTV's] submission that no order can or should be made pursuant to s 99(a)(iii)(B) of the Act.

4. At a fundamental level, for the following reasons, I find that the Tribunal does have the power/jurisdiction to potentially make a 'disallow the application' finding in relation to the proceedings before me, pursuant to Section 99(a)(iii)(B) of the [PEA].

How the applicant's case was framed and procedural fairness issues

1. In the Application for Review form which Mr Kilpatrick lodged with the Tribunal, this form under the heading ['] State your reasons for applying' has the following notable text:

• The first paragraph reads - "Review of permit conditions 1(a), 12 and 14 on the basis that these conditions are not acceptable to the Applicant, pursuant to [Section 99(a)(iii)(B)] of the [PEA]".

• The second paragraph states - "The application seeks planning permission for the siting of a dwelling within the Public Acquisition Overlay affecting the land. (The purpose of the application is to trigger an entitlement to compensation under s 98(1)(a) of the [PEA])".

• The final paragraph reads - "The applicant seeks an order by the Tribunal to disallow the application for review on the on the ground that the land is or may be required for a public purpose, pursuant to s 99(a)(iii)(B) of the [PEA]".

1. It is significant that nowhere under this heading 'State your reasons for applying' does the applicant request that the contentious conditions actually be deleted from the permits.

2. Hence I accept that the applicant has been consistent with [his] approach, in terms of how the Applications for Review were lodged at the Tribunal and what outcome he sought at the hearing before me. Council and [HTV] have had ample and very overt notice of the 'enlivening of the Section 99 compensation provisions' outcome that the applicant was seeking in taking its Application for Review to VCAT.

3. This is important because I accept that where an applicant is seeking a 'disallow the application' type of Tribunal [sic, scil. 'order'], this approach needs to be [sic] have been clearly flagged along the way to the Tribunal and the other parties.

4. If by contrast the seeking of a 'disallow the application' type of order was not flagged in the Application for Review documents and is only raised by the applicant very late in the time period leading up to the Tribunal hearing or for the first time at the hearing:

• It would be much more difficult to justify why 'potentially enlivening the [PEA] compensation process' should be made the focus of the Tribunal hearing.

• There is a 'procedural fairness' question whether this is 'moving the goalposts' in a procedurally unfair and inappropriate manner, which unduly compromises the Tribunal process and the running of the Tribunal hearing.

Lack of statutory or caselaw foundation for the position taken by [HTV]

1. It is telling that [HTV] could not highlight or rely on any supportive statutory provisions or caselaw, in making its submissions quoted at my [27] above. It might suit [HTV] to take that view that these combined proceedings involve nothing more than a stock-standard conditions appeal, but it's hard to see any real foundation for this proposition beyond it being [HTV's] preferred outcome.

2. On my reading of the relevant provisions of the [PEA], there is nothing in that Act overtly indicating that this type of VCAT proceeding[358] cannot be utilised for the permit applicant at the VCAT hearing seeking an order that the 'application be disallowed' pursuant to Section 99 of the [PEA]. If it was the intention of the draftspersons of the [PEA] that it is only some other statutory/application process that can be utilised to enliven a Section 99 compensation claim, you would expect to see this spelt out in that Act (which is not the case).

Analysing the key words in Section 99 of the [PEA]

1. It is helpful and appropriate for the Tribunal as a starting point to apply a 'plain reading' of Section 99 of the [PEA], noting the judicial statement that:

This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] context itself[359]... The language which has actually been employed in the text of the legislation is the surest guide to legislative intention.[360]

1. Similarly in Australian Education Union v Dept of Education and Childrens Services (2012) 285 ALR 27 the relevant High Court majority held that "The disposition of this appeal turns upon the correct construction of s 9(4). The process of construction begins with a consideration of the ordinary and grammatical meaning of the words of the provision having regard to their context and legislative purpose".
2. On a plain reading of the relevant text in Section 99, the opening text in that section indicates that a "...right to compensation and the liability of a planning authority or responsible authority to pay compensation..." arises in certain circumstances set out in the balance of that section. Section 99(a)(iii)(B) tells us that one of these circumstances is where the responsible authority "...grants a permit subject to any condition which is not acceptable to the applicant..." and then the following text at the end of sub-clause (iii) reads - "...and the Tribunal disallows any application for review of the failure or condition on the ground that the land is or may be required for a public purpose...".

39 On a plain and straightforward analysis of this text:

• In the context of four relevant planning permits here each containing certain permit conditions which the applicant contests, the applicant has confirmed in its VCAT Application for Review form and at the hearing before me that it finds the contentious conditions 'unacceptable'.

• When you analyse the relevant text in Section 99(a)(iii)(B) carefully, the 'finds unacceptable' requirement simply applies to the position of the applicant. Hence for the purposes of that provision, I consider it irrelevant whether or not Council and/or [HTV] by the time of the Tribunal hearing had agreed to the deletion of the contentious permit conditions.

• The circumstances here of the applicant opposing the contentious conditions and bringing this matter on review to the Tribunal surely matches up with the situation described in Section 99(a)(iii)(B) - see the first lot of text in italics that I have set out in the paragraph above.

Other points in favour of the applicant's position

1. My findings above are reinforced by the following points.
2. First, where there is legislation that sets out certain rights and/or obligations, it is common sense for Courts or Tribunals to assume that these provisions are there for a reason and 'have work to do'. Statutory provisions such as Section 99(a)(iii)(B) are not drafted and passed by Parliament as 'padding' or just to fill in the time of the Parliamentary Drafting Office and/or Parliament.
3. Second, during the hearing I asked the advocate for [HTV] how else in reality a landowner is meant to enliven the compensation process under Section 99(a)(iii)(B), apart from in this type of proceeding at VCAT where certain conditions are being challenged at the Tribunal. I did not receive any coherent response to this question.
4. Third, I do not accept that [HTV] can be said to have come to the Tribunal with 'clean hands', in terms of its preferred position that this proceeding has always been and should be treated by the Tribunal as being nothing more or less than a bog standard conditions appeal. As I have already set out above (with my highlighting):

On 23 December 2020, the Authority told Council that it did not object to the grant of permits subject to the following conditions being included in the permit:

The dwelling and improvements are sited outside of the area encumbered by the Public Acquisition Overlay to the satisfaction of the Responsible Authority and the Department of Transport.

Access to the dwelling via an all-weather access road must be provided from Palm Springs Road.

No compensation is payable under Part 5 of the [PEA] in respect of anything done under the permit.

1. The strong indications are that from very early in the processing of the four planning permit applications lodged by Mr Kilpatrick, [HTV] was very alive to the 'compensation implications' of the dwellings being proposed in that part of the four lots affected by the PAO5 and this overtly flavoured HTV's response as a determining referral authority.
2. Where [HTV's] response set out above includes the requirement that the proposed dwellings be moved outside of that part of the four lots affected by the PAO5, there is no material evidence that this desire to move the intended location of each new dwelling was due to conventional planning policy considerations or site constraints such as flooding or 'vegetation removal' issues, or for bushfire protection purposes.
3. Rather, the available evidence indicates that each of the dwellings was by permit condition required to be moved, so as to avoid a compensation claim arising. This evidence notably includes the [HTV] initial response that 'No compensation is payable under Part 5 of the [PEA] in respect of anything done under the permit". I would make the same 'available evidence' comment in terms of the extremely unusual situation of [HTV] reversing its position in the lead up to the hearing before me, and at the hearing advising that it [was] no longer seeking to defend the contentious permit conditions.

At a more detailed level, have the requirements of Section 99(a)(iii)(B) for a potential 'disallow the application' order been made out here?

1. With a more detailed analysis of the relevant requirements of Section 99 of the [PEA], in relation to each of the four applications, I am satisfied that the requirements have been met for the Tribunal to make a 'disallow the application' order.

2. First, the responsible authority (here Council) has issued the four planning permits in question.

3. Second, the applicant has objected to the contentious conditions. Both in its initial VCAT Application for Review form and at the Tribunal hearing, the applicant has confirmed its position that the contentious conditions are 'unacceptable' i.e. mirroring the relevant language from Section 99(a)(iii)(B).

4. Third, it is clear cut that the anticipated future outer ring road is a very high level public project, of city-wide importance to Melbourne, that has an obvious 'required for a public purpose' flavour to it. The PAO5 does not involve a private project with limited access to it, such as say a private office building. Rather, it involves an anticipated major road, where it is reasonable to assume that the general public would have access to same.[361] The huge scale of the project is reinforced by the fact that it is expected that the outer ring road will provide for both train and vehicle movement.

5. Out of completeness, I confirm that on the evidence presented to me by Council and [HTV], I see no indications that the aim of building the outer ring road at some future stage has been abandoned. The indications are that the outer ring road will be built some distance into the future, but currently there is very much still a focus on providing for it.

6. It follows that whilst there is no guarantee that the outer ring road will definitely be built at some future point, this is still consistent with the relevant Section 99 text using the words (with my highlighting) "...is or may be required for a public purpose". In other words, it is not as if this part of the relevant Section 99 text requires the elimination of any doubt that a relevant project will be built in the future. Rather, it needs to be shown that the project will go ahead or that it may go ahead, where it is required for a public purpose (and I accept this test is met here).

7. Fourth, I am satisfied that there is no credible case that a dwelling could be built on each of the four intended locations, and then these dwellings could co-exist with this section of the outer ring road being built.

8. During the hearing Mr Morris submitted that the relevant plans show that if the four dwellings were built and allowed to remain in place, they would form part of the north-bound traffic lanes for the outer ring road. Following this line of thinking, it is nonsensical to contemplate the possibility that any of these dwellings (once built) would be allowed to remain, if this section of the outer ring road was constructed.

9. I find convincing and accept these submissions by Mr Morris.

10. I note that during the hearing before me, there was some loose suggestion by [HTV] whether, if this section of the outer ring road went ahead, it might be feasible to retain the four dwellings. If Mr Morris is correct that the proposed dwellings would lie in the north-bound lanes of the anticipated outer ring road, this suggestion is farcical. But even if it was the case that the dwellings would be located more on the edge of the future outer ring road, how often do any of us drive around a major road in greater Melbourne, look over your dashboard and see a dwelling located right next to the edge of the road?

11. Rather, as you would expect from a road safety point of view on modern major roads, you typically see a wide broader road reservation area and a cleared buffer area on the edge of the road. If you do sometimes see built form at least approaching the edge of the road reservation of a major road, typically it is still set well back and often is commercial/industrial rather than residential adjoining development.

What role (if any) do the Day and Mason decisions play here?

1. The decision of City of Nunawading v Day [1992] 1 VR 211 was raised by the applicant at the hearing before me. Mr Morris argued that whilst the relevant brief comments in Day about Section 99(a)(iii)(B) in [Day] were obiter, such comments are still favourable for his client's case. This was disputed by [HTV], who also expressed concern that it had not been given adequate warning/time to research this case. Hence it was agreed by the end of the hearing that both the applicant and [HTV] would be able to lodge supplementary submissions in this regard. This duly occurred and I have taken these follow up submissions into account in my findings in these Reasons.

2. Also in the mix is the related Victorian Court of Appeal decision of Lesley Mason v Head, Transport for Victoria [2021] VSCA 19. However for the reasons explained below, I see the Mason decision as adding very little to the key issues before me.

3. Again in a spirit of avoiding duplication, the main features of the Day decision are set out more briefly at [12]-[17] of the applicant's supplementary written submission and at [6]-[22] of the [HTV] equivalent submission. Suffice to say that in Day, the owner of several lots made a planning permit application in relation to each lot, with the aim of enlivening the relevant [PEA] compensation process. However three of the four permit applications came to the Tribunal as a 'failure appeal', with merely the fourth one being a challenge to a permit condition. The initial findings of the Tribunal were in turn appealed to the Supreme Court.

4. On the one hand, I find that for our purposes here, the relevant comments in the Day Supreme Court decision about Section 99(a)(iii) need to be treated with some caution, and certainly are not determinative. Notably:

• The Day decision is now 30 years old.

• It is undisputed that the relevant comments in the Day decision about Section 99(a)(iii) are very brief and obiter.

• Some of the key facts in the Day decision are different to those here. For example, in Day there was only one permit application involving a contested permit condition. The other three permit applications came to the Tribunal as a 'failure appeal', which in turn meant that the Court more focused on Section 98 of the [PEA].

1. On the other hand, the Day decision does include a paragraph which is significant for our purposes here, as follows.
2. At [14] of its supplementary written submission, the applicant highlighted that the Day decision includes the following statement (with my highlighting), which expressly focuses on Section 99(a)(iii) of the [PEA]:

Under S 99(a)(iii), it is not inappropriate that the tribunal should exercise a power to 'disallow any appeal'. That sub-paragraph applies only where the responsible authority fails to grant a permit within the period prescribed for the purposes of s 79 or grants a permit subject to a condition which is not acceptable to the applicant. The tribunal may then disallow the appeal against that failure or that condition "on the ground that the land is or may be required for a public purpose...".

1. This statement is obiter and hence can only be given so much weight. However I see it as straightforward that this statement (notably the first sentence) supports the applicant's case before me.
2. In other words, where in Day the Court (like here) had before it a challenge to a permit condition, I accept that the underlined text from the quote above points to an informal view by the Court that the Tribunal has a ready capacity to potentially make a Section 99(a)(iii) order.
3. For the same reasons, I see this underlined text as supporting the proposition that there is nothing inherently wrong or invalid in an applicant utilising what would otherwise be a 'conditions appeal' at the Tribunal, to instead seek a 'disallow the application' order. However see my comments further above about the need (to avoid confusion and uncertainty) for such a VCAT application to clearly flag in the Application for Review form and at the hearing that the proceeding is being run simply to obtain a 'disallow the application' type of order, to enliven the compensation process.
4. For the purposes of the key debate before me about the facts here and Section 99(a)(iii)(B) of the [PEA], I consider that the Mason decision lacks relevance and is not inconsistent with my findings set out above, regarding the Day decision.
5. Where [HTV] provided me with a 9 page further written submission which discusses Day at length, I find this submission somewhat long-winded and not adding much of real relevance to the key issues I have already grappled with further above.

Conclusion

1. For the reasons set out above, I have granted in relation to each proceeding before me the 'disallow the application' order sought by the applicant.

2. For the removal of any doubt, where the Tribunal has made such an order pursuant to Section 99(a)(iii)(B) of the [PEA], I consider that:

• There is no need for me to make any conventional planning merits findings whether the contentious conditions should be deleted from each permit. This is consistent with my observation further above that in its VCAT Application for Review form, the applicant did not seek any order that the contentious conditions be removed from the permits.
• Hence my orders at the beginning of this decision simply are 'disallow the application' type of orders.

215 I note again that VCAT set out in full, as an appendix to its reasons, Mr Kilpatrick's pre-hearing VCAT submissions. In turn, those submissions contained extensive reference to the provisions of the relevant planning instruments, and, in particular, to the provisions of PAO5 itself. It is plain from VCAT's reasons that it agreed with the following summation, set out in paragraph [47] of the submissions, of Mr Kilpatrick's argument:

In the context of a major infrastructure project, it is inappropriate to allow the reserved land to be developed for dwellings. The development will prejudice the purpose for which the land is to be acquired. This is contrary to the purpose of the PAO.

216 Indeed, putting aside the matter of the changed form of order ultimately sought by Mr Kilpatrick, I would infer that VCAT saw no error in anything contained in Mr Kilpatrick's written pre-hearing VCAT submissions. Further, VCAT said expressly, in [54]-[55] of its reasons, that it 'found convincing and accepted' the submissions made orally by Mr Morris QC to the effect that it was 'nonsensical' to contemplate that the proposed dwellings could remain if the ring road were constructed. There is no express statement anywhere in VCAT's reasons, nor any other substantial indication, to the effect that VCAT disagreed with any other aspect, or any other part, of Mr Morris QC's oral submissions. In all the circumstances, I would infer that VCAT accepted, at least in substance, the thrust of Mr Morris QC's oral submissions as a whole. But even if I were not to draw either of the inferences referred to in this paragraph, my reasoning in this case, and my ultimate conclusions as summarised in [11]-[14] above, would be the same.

217 On 26 July 2022 HTV filed an amended notice of appeal. Leave to appeal was sought from all of the orders made by VCAT on 11 May 2022.

218 Under the heading 'Proposed grounds of appeal', three numbered grounds are set out. In addition, there are several sub-grounds or particulars attached to grounds 2 and 3. There are also some footnotes to the proposed grounds and sub-grounds or particulars of appeal. I will reproduce this whole section of the amended notice of appeal, adjusting some of the terms to fit the style already adopted in this judgment. I will include HTV's footnotes, but I will renumber them:

Proposed grounds of appeal

Ground One: The Tribunal erred in purporting to make orders under s 99(a)(iii)(B) of the [PEA] because it did not have jurisdiction under Part 5 of the [PEA][362] and therefore lacked the power to make the orders that it did.

Ground Two: In so far as the Tribunal purported to exercise its review jurisdiction under s 80 of the [PEA],[363] it erred in that:

(a) it failed to engage with the provisions of s 84B of the [PEA] and failed to exercise its powers under s 85;

(b) it failed to take into account the position of [HTV], which position it was bound to take into account;[364] or

(c) in the proper exercise of its jurisdiction, the Tribunal should have set aside the decisions of the responsible authority,[365] directed that the relevant planning permits not contain the contested conditions[366] and allowed the applications for review.

Ground Three: If (which is denied) the Tribunal had jurisdiction to make a 'disallow the application'[367] order under s 99(a)(iii)(B) of the [PEA] (contrary to Ground One above), it erred in concluding that the requirements of that section were satisfied in that:

(a) it exercised that jurisdiction in the absence of an anterior, and necessary, finding in the exercise of its review jurisdiction under s 80 of the [PEA];

(b) it was not open to the Tribunal to conclude that the land is or may be required for a public purpose[368] in circumstances where [HTV] did not require the permit conditions to remain;[369] or

(c) it was not open to the Tribunal to conclude[370] that the contested permit conditions were not acceptable to the applicant in circumstances where:

(i) there was no evidence from the applicant to this effect;

(ii) the applicant did not seek that the contested permit conditions be removed from the permit;[371]

(iii) the applicant sought, in his applications to the Tribunal, that the applications for review be dismissed (specifically 'disallowed'); or

(d) the Tribunal wrongly took into account an alleged lack of clean hands by [HTV][372] when a finding to that effect was irrelevant and therefore not open to the Tribunal.

219 Under the heading 'Questions of law', the amended notice of appeal reads as follows:

Ground one: Does s 99 of the [PEA], on a proper construction, and other than by application of s 105 of the [PEA] and s 81(1)(b) of the LACA, confer any jurisdiction on the Tribunal?

Ground two: Did the Tribunal apply the correct legal test insofar as it exercised jurisdiction under s 80 of the [PEA]?

Ground three: If (which is denied), the Tribunal did have jurisdiction under s 99 of the [PEA], was it open to the Tribunal to find that the requirements of s 99(a)(iii)(B) were satisfied?

220 Under the heading 'Orders sought', the amended notice of appeal seeks orders that leave to appeal be granted and that the appeal be allowed. It further seeks orders that VCAT's orders be set aside and be substituted with orders allowing each application for review and directing that each planning permit not contain the conditions in question. Alternatively, it seeks an order that the matter be remitted to VCAT for further hearing and determination having regard to this Court's findings and reasons for judgment. Orders for costs are also sought.

The parties' written outlines and written submissions in this Court

221 In this Court, HTV filed and served a detailed document dated 24 November 2022 prepared by Mr Goubran KC and Ms E Murphy of counsel. Though called an 'outline' of submissions, it is 23 pages long and it contains 84 paragraphs and 103 footnotes ('HTV's outline').

222 Mr Kilpatrick filed and served a responsive document dated 23 February 2023 prepared by Mr Chiappi of counsel. Though called 'submissions', the document is a relatively modest eight pages in length, with 44 paragraphs and 21 footnotes ('Mr Kilpatrick's written submissions').

223 HTV then filed and served a further document prepared by Mr Goubran KC and Ms Murphy, this one being dated 28 March 2023. It is called a reply 'outline' of submissions. It is nine pages long, with 31 paragraphs and 39 footnotes ('HTV's written reply').

The general order of the remainder of this judgment

224 As mentioned above,[373] during the oral hearing in this Court (which took place on 9 and 13 June and 24 July 2023) senior counsel for HTV (Mr Goubran KC) told me at one stage that HTV maintained all of its proposed grounds of appeal and sought my adjudication on 'each and every one of them';[374] and (later) that he wished to be 'very clear' that HTV 'relies upon its written submissions and its amended notice of appeal', and that HTV 'does not in any way concede any matters that are contained in those written submissions and the amended notice of appeal'.[375] Mr Goubran KC made the first of those statements on the afternoon of the first hearing day and he made the second of them late on the second hearing day. He did not, at least in terms, subsequently modify HTV's stance in those respects in any way. In consequence, I propose to deal with the contents of the parties' outlines and written submissions in detail. I will do so before I come to the features of the oral hearing. I will begin by dealing with HTV's application for leave to appeal, in relation to which the parties largely confined themselves to their written submissions. I will then deal with the introductory, general parts of HTV's outline. So far as the parties' written submissions on the individual proposed grounds of appeal are concerned, I will deal first with HTV's written submissions on proposed ground 1; then Mr Kilpatrick's written response on ground 1; and then HTV's written reply on ground 1. I will proceed to do the same for grounds 2 and 3. Next, I will identify the evidence that was before this Court, all of which was in documentary form. I will then turn to the salient matters that occurred during, or emerged from, the oral hearing. My final conclusions will then follow.

225 The matters relied on by HTV in support of its application for leave to appeal are identified, principally, in paragraphs [4]-[7] of HTV's outline. HTV asserts that there is a significant public interest in the proposed questions of law, and that the justice of the case favours the grant of leave. HTV's arguments in support assume that its proposed grounds of appeal are sound. In particular, HTV assumes, in relation to the question of leave to appeal, that VCAT found that it had original jurisdiction as distinct from review jurisdiction, in this matter;[376] that, however, VCAT had no jurisdiction or power to consider the 'multi-factorial' issue of whether land is or may be required for a public purpose; and that VCAT 'usurped' HTV's role and function in that regard.[377]

226 Mr Kilpatrick opposes the application for leave to appeal. In his written submissions, he says that the proposed appeal has no real prospects of success; that VCAT's jurisdiction to make the orders in question is evident on the face of the relevant statutory provisions; and that VCAT's consideration of the applications for review shows no error.[378]

227 As already indicated, I propose to grant leave to appeal. I am satisfied that HTV's prospects of success are (marginally) better than fanciful. At the same time, given the complexity of the case, the public interest will be served by demonstrating why the proposed appeal, which HTV claims to be important, should be dismissed. Those considerations narrowly outweigh what I regard as the three main negative factors, namely, first, the poverty and hollowness of HTV's arguments generally; second, HTV's attempts to depart from the case it ran at VCAT (including concessions it made at VCAT); and, third, the fact that, according to VCAT's abovementioned (relevantly unchallenged) finding, HTV did not have 'clean hands' in this matter.

The description, in HTV's outline, of the background facts

228 Paragraphs [8]-[19] of HTV's outline purport to set out the background facts relating to the proposed appeal.

229 In paragraph [13], the conditions in question are defined as the 'contested conditions',[379] and HTV proceeds to use that term in subsequent paragraphs of the outline. However, the term is potentially a misleading one. As explained several times above,[380] at VCAT Mr Kilpatrick was not 'contesting' the conditions in the sense of manifesting an actual desire for VCAT to remove them. Far from it. Rather, Mr Kilpatrick was simply applying for review of the conditions in accordance with the abovementioned conventional understanding of the relevant provisions of the PEA, i.e. by following the long established test or token practice, the appropriateness of which was, as indicated above, conceded by HTV at VCAT, at least eventually. As is also indicated above[381] (and as I will mention in more detail below[382]), at the oral hearing in this Court, HTV expressly declined to seek leave to further amend its amended notice of appeal so as to challenge the understanding of the legislation on which Mr Kilpatrick had proceeded. In effect, HTV thereby conceded, again, in this Court, the legitimacy and effectiveness of the approach adopted by Mr Kilpatrick.

230 In paragraph [18] of its outline, HTV asserts that, in Mr Kilpatrick's applications for review, Mr Kilpatrick had described the conditions as being 'not acceptable' to him. HTV then asserts that Mr Kilpatrick had stated in his applications that that was 'why he wished to have the decisions to grant the permits on terms reviewed (thereby suggesting that the applications before the Tribunal ought to have been able to be dealt with by consent)'. This is plainly an example of HTV, in its written material, ignoring:

(a) the conventional understanding of the relevant provisions of the PEA;

(b) the related long established practice of test or token applications;

(c) the concessions it had made in this regard at VCAT;

(d) the fact that Mr Kilpatrick's test or token approach had not been challenged in HTV's amended notice of appeal and was not challenged in any other part of HTV's outline; and

(e) the specific concession HTV had made at VCAT that Mr Kilpatrick satisfied the 'not acceptable' requirement in s 99(a)(iii)(B).

What HTV says in paragraph [18] of its outline is also irreconcilable with HTV's later concession, at the oral hearing, to the effect that Mr Kilpatrick's test or token approach was legitimate and effective. Paragraph [18] of HTV's outline is too cute by far.

231 In paragraph [19], HTV asserts that VCAT's decision was made in circumstances where HTV 'no longer required the imposition of the conditions, whether for public purpose or other grounds'. The use of the word 'required' here is problematic. If the word were understood in the sense of 'mandated', it would imply that HTV had had a power to force VCAT to maintain, or to remove, the conditions. But, as already mentioned, and as HTV had conceded at VCAT,[383] and later conceded in this Court,[384] HTV had had no such power.[385] If the word 'required' were understood in the sense of 'needed', then the sentence in which it appears would imply that HTV's new position at VCAT (namely, that it no longer 'required' the conditions) was genuine and well founded. However, as explained above, there was every indication at VCAT that HTV's position in that respect was neither genuine nor well founded. Indeed, VCAT so held. And VCAT's finding that HTV lacked 'clean hands' in this regard is not relevantly challenged.[386]

The description, in HTV's outline, of VCAT's reasons

232 In paragraphs [20]-[28] of its outline, HTV purports to encapsulate VCAT's reasons for decision. Again, there are some parts of HTV's exposition that have significant potential to mislead.

233 In paragraph [21], it is asserted that VCAT 'noted' that Mr Kilpatrick 'submitted' various things. The paragraph goes on to use quotation marks and italics for five expressions or sets of words. The impression given is that these expressions or sets of words, and the propositions to which they relate, represent precisely what had been submitted at VCAT on behalf of Mr Kilpatrick. However, that was not so. Rather, the quoted expressions and sets of words come from paragraph [18] of VCAT's reasons, which in turn contains no more than VCAT's attempt to summarise, briefly, some of the submissions made at VCAT on behalf of Mr Kilpatrick.

234 Moreover, paragraph [21] of HTV's outline contains a significant misdescription of paragraph [18] of VCAT's reasons, and, all the more so, a significant misdescription of the case that had been advanced by Mr Kilpatrick at VCAT. In paragraph [21], HTV asserts that VCAT noted, among other things, that Mr Kilpatrick had submitted (HTV's emphasis):

... that the Tribunal had the "discretion" to potentially make an order pursuant to s 99(a)(iii)(B) based on the mere fact that Mr Kilpatrick considered the contested conditions unacceptable and the fact of reservation meant that the relevant land is or may be required for a public purpose, namely the future Outer Metropolitan Ring Road as per the reservation.

This is a distortion of the second and third dot points of paragraph [18] of VCAT's reasons (see above). VCAT did not use the expression 'based on' or the expression 'the mere fact' or any true equivalent of either of those expressions. More importantly, VCAT did not attribute to Mr Kilpatrick a submission that 'the mere fact' that Mr Kilpatrick considered the conditions unacceptable, together with the fact of reservation, was a sufficient basis for the proposed order. Rather, in the second dot point of [18] of its reasons, VCAT had attributed to Mr Kilpatrick a submission that 'the very fact' that he considered the conditions unacceptable, together with the fact that 'these four proceedings are now before the Tribunal' gave the Tribunal the discretion to potentially make an order pursuant to s 99(a)(iii)(B). There was much more to 'these four proceedings' than the unadorned fact of the reservation for the Ring Road. Wrongly, HTV gives the impression here that Mr Kilpatrick had put a simplistic case to VCAT, and that VCAT had responded accordingly. However, in truth, as shown above, Mr Morris QC had put a very detailed case to VCAT on the factual and discretionary issues, and had carefully taken VCAT through the relevant planning instruments and principles. And, having heard the detailed case that had been put by Mr Morris QC, and having indicated in its reasons that it accepted the matters of background and context set out in Mr Kilpatrick's pre-hearing VCAT submissions, VCAT, in the third dot point of the very paragraph of its reasons now in question (paragraph [18]), attributed to Mr Kilpatrick the proposition that 'the site of each proposed dwelling is in each case clearly land which "...is or may be required for a public purpose" i.e. the future public purpose of the intended outer ring road, as per the reservation'.[387] I would emphasise the word 'clearly' in that passage. And I note that the passage refers to Mr Kilpatrick's submissions to VCAT about the specific set of circumstances relevant to this case, not to any submissions of Mr Kilpatrick about road reservations generally.

235 In paragraph [22] of its outline, HTV again uses the problematic word 'required'. It says that, in paragraph [17] of VCAT's reasons, VCAT 'noted' that HTV no longer 'required' the conditions. But VCAT had not actually used the word 'required' in paragraph [17] of its reasons. Rather, somewhat differently, VCAT had noted that HTV was 'no longer seeking to justify' the conditions.[388]

236 There are additional problems with other parts of HTV's purported description of VCAT's reasons, but these can be swept up into my consideration of the remainder of HTV's case.

The description, in HTV's outline, of the statutory framework

237 In paragraphs [29]-[36] of its outline, HTV purports to describe the relevant statutory framework.

238 Those paragraphs begin by referring to the process of reserving land for public purposes. The abovementioned case of Day is cited, in passing, in that particular context.[389] HTV then concentrates on the provisions of Part 5 of the PEA. Various cases referring to the provisions of Part 5 are cited.[390] Passages of text are quoted from some of the cases. HTV makes particular reference to ss 98 and 99 of the PEA. There is also reference to s 105 of the PEA, which, as indicated above, picks up and applies Parts 10 and 11 and s 37 of the LACA.

239 However, there is no reference in this section of HTV's outline to the objectives of planning in Victoria as stated in the PEA or to the objectives of the planning framework established by the PEA.[391] Nor is there any reference here to any of the provisions of Part 4 of the PEA, or to any of the links that exist between the various Parts of the PEA. There is no reference here to the highly relevant link that exists between Division 2 (VCAT reviews) of Part 4 (Permits) of the PEA, on the one hand, and s 99(a)(iii) (which is contained in Part 5) of the PEA, on the other hand. Apart from the passing reference mentioned above, there is no reference, in this section of HTV's outline, to the case of Day. This is so notwithstanding that Mr Kilpatrick had relied on Day at VCAT; that the case had been the subject of special post-hearing written submissions at VCAT; and that VCAT had found Day to be at least somewhat enlightening. As will further appear, Day is in fact an important case that was discussed in detail at subsequent stages of the proceeding in this Court. The only other reference to Day in the whole of HTV's (initial) outline does not appear until the very end of the section relating to ground 1, and then only in the form of another passing observation, this time in a footnote.[392]

The overlap between HTV's arguments on the proposed grounds of appeal

240 There is some considerable overlap between HTV's arguments on proposed ground 1 and its arguments on various parts or aspects of grounds 2 and 3. For example, as I have already indicated and as I will further indicate in due course, HTV argues, under ground 1, that VCAT was purporting to exercise original jurisdiction rather than review jurisdiction in making its order. HTV asserts that this is 'clear' from two things: first, from VCAT's (alleged) failure to engage in a de novo review of the planning conditions in question; and, second, from VCAT's statement that it did not need to make any conventional planning merits findings as to whether or not the conditions should be deleted from the permits. The former is expressly relied on by HTV under grounds 2 and 3, as well as under ground 1. The latter appears to be implicitly relied on by HTV under both ground 2 and ground 3, as well as under ground 1.

241 There are additional areas of overlap between HTV's arguments on the various grounds and sub-grounds, not least the pervasive poverty and hollowness of HTV's arguments generally. Those features, in turn, mean that the issue of materiality is common to the whole of HTV's case, as will further appear. Nevertheless, as foreshadowed above, I will deal with the remainder of the parties' written submissions on a ground-by-ground basis. However, it is inevitable that there will be considerable cross-over.

242 One other task must be performed before I come to the parties' written arguments under proposed ground 1. The very terms of that proposed ground must be identified.

243 Ground 1 of HTV's proposed appeal, as that ground appears in the amended notice of appeal, is set out above. HTV alleges therein that VCAT 'erred in purporting to make orders under s 99(a)(iii)(B) of the [PEA] because it did not have jurisdiction under Part 5 of the [PEA][393] and therefore lacked the power to make the orders that it did'.[394] However, in HTV's outline,[395] HTV purports to state ground 1 in rather different terms, as follows:

Ground 1: The Tribunal erred in finding that it had jurisdiction under Part 5 of the [PEA] (and in making orders under s 99(a)(iii)(B) in consequence)

The main difference between the two ways of expressing ground 1 is that, in HTV's outline, there is an allegation that VCAT found that it had jurisdiction under Part 5 of the PEA and then, in consequence, made orders under s 99(a)(iii)(B), whereas in the amended notice of appeal there is no allegation - or at least no express allegation - to that effect.

244 It is not surprising that the allegation now set out as ground 1 in HTV's outline had not appeared in the amended notice of appeal. In VCAT's decision and reasons, VCAT did not make any express finding that it had jurisdiction under Part 5. Nor did VCAT speak of any consequences of such a finding. There are only two references to 'Part 5' in VCAT's decision and reasons, as follows:

(a) in paragraph 18 (first dot point) of its reasons, VCAT refers to a submission said to have been made by Mr Kilpatrick to the effect that it was appropriate for VCAT to consider whether Mr Kilpatrick had 'triggered the "compensation" process under Part 5 of the [PEA]'; and

(b) in the appendix to the reasons, being a copy of Mr Kilpatrick's pre-hearing VCAT submissions, Mr Kilpatrick says (in paragraph [3]) that the purpose of his applications to the Council for permits was to obtain a refusal, 'so as to enliven rights to compensation under Part 5 of the [PEA]'.

Both of these references to Part 5 were merely references to what Mr Kilpatrick might be able to claim under Part 5 in separate processes to be commenced after the Council or VCAT (as the case may be) had made its determination on his applications.

245 HTV has not sought, much less obtained, leave to amend ground 1 (as stated in the amended notice of appeal) so as to convert it into the form it takes in HTV's outline. Nevertheless, I will address all the arguments that the parties have advanced under, or in relation to, HTV's proposed ground 1 (however stated).

246 Paragraphs [37]-[58] of HTV's outline are dedicated to proposed ground 1.

247 Those paragraphs include a section headed 'Statutory framework', comprising paragraphs [37]-[43]. In that section, HTV describes VCAT as a creature of statute and as the possessor of certain original jurisdiction and of certain review jurisdiction and of no other jurisdiction. So far as it goes, that section of HTV's outline may be accepted. It is not inconsistent with anything contained in my general discussion of VCAT and its jurisdictions, functions and powers set out in paragraph [15] above. On the other hand, I note in passing that, up to this point of HTV's outline, despite the inclusion of two 'statutory framework' headings, there is still no express reference to Part 4 of the PEA or to the links which exist between the provisions of Part 4 and the provisions of other Parts of the PEA.

248 In paragraphs [44]-[45] of the outline, under the heading 'Discussion', HTV makes its principal submissions relating to ground 1. Those submissions may be summarised as follows:

(a) VCAT 'held' that it had jurisdiction 'under Part 5' to make an order 'under s 99(a)(iii)(B)';[396]

(b) VCAT did so purportedly in the exercise of original jurisdiction, rather than review jurisdiction;[397]

(c) this is 'clear' from VCAT's 'failure to engage in a de novo review of the contentious conditions',[398] and from VCAT's 'conclusion that it need not make any conventional planning merits findings whether the contentious conditions should be deleted from the four permits';[399]

(d) the provisions of Part 5 of the PEA themselves (as distinct from the provisions of the LACA incorporated by Part 5) do not confer any original jurisdiction or power on VCAT to make a first instance decision;[400]

(e) the only relevant original jurisdiction of VCAT is its jurisdiction conferred by the LACA (the LACA being 'incorporated by s 105 of the [PEA] in a limited manner').[401]

Those principal submissions are developed by HTV in paragraphs [46]-[58] of its outline. As indicated above,[402] and as will further appear, my view is that, for the most part, HTV's submissions under proposed ground 1 are either misconceived or beside the point. Certainly, they fail to establish ground 1.

249 In paragraphs [46]-[53] of its outline, HTV gives a description of the regime enacted by the LACA for the making and determination of a claim for compensation, being the regime which s 105 of the PEA makes applicable (with any necessary changes) to claims for compensation for 'planning blight'. HTV points out that, under the LACA, a claim must first be made to the relevant authority. If the claim is refused, or the claim is not dealt with in due time, it becomes what the LACA refers to as a 'disputed claim'. HTV submits that the statutory concept of a 'disputed claim' is central to the LACA regime; and that original jurisdiction to determine a disputed claim under the LACA rests either with VCAT or with this Court, depending on which of those two forums is invoked by the relevant party. HTV submits that, otherwise, VCAT has no original jurisdiction in relation to claims for compensation for 'planning blight'.

250 HTV proceeds to submit in its outline[403] that the requirement for a 'disputed claim', if VCAT (or this Court) is to have any jurisdiction 'under Part 5 of the PEA', has been described by Richards J in Rizzo v Head, Transport for Victoria ('Rizzo')[404] as a 'filter';[405] and that Richards J emphasised the steps that must first occur before the LACA gives VCAT (or this Court) jurisdiction to determine a disputed claim.[406] HTV submits[407] that, in determining that it had 'jurisdiction/power' to make a 'disallow the application' type order pursuant to s 99(a)(iii)(B) in these matters, VCAT overlooked and bypassed the statutory 'filter' referred to by Richards J in Rizzo. HTV proceeds:[408]

There was no disputed claim. The matter not having gone through that filter, the Tribunal lacked jurisdiction. Specifically, there was no jurisdiction of the Tribunal to, among other things, consider the question of whether the relevant land "is or may be required for a public purpose" and there was no power to make the "disallow the application" order that the Tribunal did in each proceeding.

251 HTV further submits[409] that VCAT asked itself the wrong question insofar as it asked itself whether it was 'inherently barred/prohibited from potentially making a "disallow the application" order'.[410] According to HTV, VCAT should rather have asked itself what jurisdiction it was being requested to exercise and whether it was empowered, in the exercise of that jurisdiction, to make the orders that it did. HTV submits that the jurisdiction that Mr Kilpatrick invoked was VCAT's review jurisdiction under Division 2 of Part 4 of the PEA.[411] According to HTV, the powers conferred on VCAT in the exercise of its review jurisdiction were those set out in, relevantly, s 85 of the PEA. HTV seems to be asserting here, quite wrongly,[412] that VCAT did not have any other relevant powers. HTV also seems to be asserting here, again quite wrongly,[413] that VCAT's decision in this matter cannot be upheld even by reference to VCAT's (admittedly available) powers under s 85 of the PEA. HTV proceeds to submit that Mr Kilpatrick did not invoke any original jurisdiction of VCAT under Part 5 of the PEA; and that, for the reasons already advanced by HTV, there was no such jurisdiction. That being the case, HTV submits, VCAT was not empowered to make the orders it did make,[414] and ground 1 is made out.[415] However, as I will further explain in due course, those two things simply do not follow from the premise that there was no original jurisdiction under Part 5.

252 In paragraph [58] of the outline, being the last paragraph under the ground 1 heading, HTV reiterates that nothing in s 99(a) of the PEA confers original jurisdiction on VCAT to make the orders it made. HTV repeats its contention that VCAT's original jurisdiction in relation to compensation is limited to determining a disputed claim under the relevant section of the LACA;[416] and HTV submits that, as Mr Kilpatrick had not made a claim under the PEA (and by incorporation, the LACA), there was no 'disputed claim' before the Tribunal. Those particular points may be accepted. However, they do not assist HTV because, as will further appear:

(a) the time for Mr Kilpatrick to make a formal claim on HTV for compensation had not yet arrived;

(b) therefore, in dealing only with an earlier stage of the statutory process, VCAT did not wrongly overlook or bypass the so-called 'statutory filter';

(c) VCAT did not purport to exercise original jurisdiction in the proceedings below;

(d) rather, VCAT exercised review jurisdiction, which it plainly had; and

(e) VCAT plainly had power, in the exercise of that review jurisdiction, to make the order which it ultimately made.

Ground 1: the arguments in Mr Kilpatrick's written submissions

253 In Mr Kilpatrick's written submissions, he says, in relation to ground 1, in summary:

(a) that there is no issue before the Court as to the nature or scope of VCAT's jurisdiction to determine disputed claims for compensation;[417]

(b) that what is in issue is whether 'Part 5 of the PEA gives rise to jurisdiction' in VCAT to make orders disallowing applications for the review of permit conditions on the ground that the subject land is or may be required for a public purpose;[418]

(c) that it is clear from the language of the PEA that it does;[419]

(d) that the proper construction of s 99 requires that attention be given to the text, context and purpose of the provision;[420]

(e) that the text of s 99(a)(iii)(B) is clear - where a responsible authority has granted a permit subject to a condition which is not acceptable to an applicant, VCAT may disallow an application for review of the condition on the ground that the land is or may be required for a public purpose;[421]

(f) that it is consistent with the statutory scheme of compensation set out in Part 5 of the PEA that VCAT should have power to make such an order. HTV's approach denies s 99(a)(iii)(B) any operation. It would be inconsistent with the statutory scheme to conclude that s 99(a)(iii)(B) does not allow for a right to compensation to arise in the circumstances expressly provided for in that provision;[422]

(g) that VCAT's relevant jurisdiction arises 'by the operation' of ss 80(1), 85(1) and 99(a)(iii)(B) of the PEA;[423]

(h) that this jurisdiction was recognised in Day;[424]

(i) that, whether or not VCAT's phrasing of the jurisdictional question was apt, it is clear that VCAT asked itself whether or not it had jurisdiction to make the orders in question, that VCAT analysed the language of s 99, and that VCAT considered relevant authorities;[425]

(j) that VCAT did not say whether it was exercising original or review jurisdiction;[426]

(k) that:

(i) clearly, VCAT assessed whether or not Mr Kilpatrick's applications for review of the conditions should be disallowed; and

(ii) in that respect, VCAT was exercising a review jurisdiction; and

(iii) what may have been required of VCAT in the course of exercising that jurisdiction falls to be considered under ground 2, not under ground 1.[427]

254 In HTV's written reply, in relation to ground 1, HTV asserts that VCAT's 'finding' as to its power/jurisdiction pursuant to s 99(a)(iii)(B), and its 'subsequent' finding that the requirements of s 99(a)(iii)(B) had been made out, led to the making of what was, in effect, a declaratory order that the subject land is or may be required for a public purpose.[428] If VCAT's order were to stand, then, according to HTV, the consequence would be that Mr Kilpatrick would have a right to compensation and HTV would be liable to pay compensation to him by reason of the reservation of the subject land.[429] However, I note again that Mr Kilpatrick would still need to make a formal claim on HTV. HTV could dispute the claim if it was so advised. If HTV were to dispute the claim, the provisions of the LACA that are incorporated by s 105 of the PEA would then apply.

255 HTV submits that VCAT's 'finding' as to its power/jurisdiction 'ignores, by blurring, the important and fundamental distinction between jurisdiction and power'.[430] HTV says that jurisdiction is authority to decide a matter, and does not incorporate the power to make orders or to grant remedies. It says that VCAT's jurisdiction to determine a matter is to be distinguished from the powers that it has in the exercise of its jurisdiction.[431] HTV continues:

As the Tribunal is a creature of statute, it has the powers expressly conferred on it by governing legislation.

Here, HTV appears to be submitting that VCAT has only the powers expressly conferred on it by governing legislation, i.e. that VCAT has no implied powers and no incidental powers. If that is what the submission means, it is plainly wrong.[432]

256 HTV accuses Mr Kilpatrick of failing in his written submissions to distinguish properly between jurisdiction and power, in much the same way as VCAT, according to HTV, had also failed. HTV says that Mr Kilpatrick's submissions 'assert a separate jurisdiction under Part 5 and/or on review to make the subject orders'.[433] And HTV submits that '[i]t is anomalous to speak of a jurisdiction to make orders'.[434]

257 HTV reiterates, in its written reply, submissions that it had made previously, to the effect that neither Part 5 (itself) nor s 99 (in particular) of the PEA confers any authority on VCAT to determine a matter, and that therefore neither confers any jurisdiction on VCAT, whether to make orders disallowing applications for review of permit conditions or otherwise.[435] HTV says (again) that Part 5 is a regime that applies to the determination of disputed claims for planning blight; and that (original) jurisdiction over disputed claims for compensation for planning blight is conferred on VCAT by the LACA.[436] HTV submits that Mr Kilpatrick's argument that Part 5 gives rise to jurisdiction in VCAT to make the challenged orders would lead to an 'improbable' result, namely that there is a jurisdiction that arises before the coming into being of a disputed claim for compensation, and also a separate jurisdiction to determine any disputed claim for compensation in consequence.[437]

258 Next, HTV turns to Mr Kilpatrick's reliance upon principles of statutory construction and, in particular, to Mr Kilpatrick's submission that VCAT's jurisdiction arises 'by operation of' ss 80(1), 85(1) and 99(a)(iii)(B) of the PEA.

259 As to this, HTV submits that jurisdiction, if it exists, must be conferred on VCAT.[438] HTV contends that the words 'by operation of' are not apt to apply to the conferral of jurisdiction (authority to decide) on VCAT.[439] That proposition is plainly incorrect as a matter of ordinary language. On the other hand, HTV is a little closer to the mark in submitting, as it proceeds to do, that review jurisdiction is conferred on VCAT by, relevantly, s 80(1) of the PEA, and that s 85(1) of the PEA specifies the powers of the Tribunal in the exercise of that jurisdiction.[440] According to HTV, VCAT's review jurisdiction under Division 2 of Part 4 is jurisdiction to stand in the shoes of the original decision-maker (here, the Council as responsible authority),[441] and to make a decision about a permit application. HTV says that VCAT is not itself charged with issuing a permit (a role that remains with the responsible authority even after review) and that (contrary to what would be the effect, according to HTV, of Mr Kilpatrick's submissions) VCAT has no jurisdiction on review to determine, in the place of HTV (as referral authority), whether or not the subject land is or may be required for a public purpose. Here, HTV reiterates its previous submission[442] that this would involve VCAT making a 'multi-factorial' decision about the public's need for land, a consequence which cannot, HTV says, have been intended by the draftsperson.[443] However, I note that, at VCAT, HTV had conceded that VCAT could validly make such a decision.[444] In my view, that concession was clearly correct.

260 Next, in its written reply, HTV submits that Part 5 of the PEA does not 'supplant' the jurisdiction of VCAT on review. HTV submits that a plain reading of the PEA as a whole makes clear that Part 5 specifies the circumstances in which compensation is payable for planning blight and prescribes a person's entitlement to compensation for planning blight. According to HTV, Part 5 is not concerned with, and does not expand, VCAT's review jurisdiction (found in s 80(1) of the PEA). HTV claims that this proposition is supported by, among other things, six sections that are contained in Part 5 of the PEA - namely ss 102, 103, 104A, 105, 109 and 111 thereof, all of which deal with aspects of compensation for planning blight.[445] However, in my opinion, as will further appear, s 99(a)(iii) of the PEA does have obvious implications for the scope of VCAT's powers in dealing with an application for review under s 80 of the PEA. Nothing in ss 102, 103, 104A, 105, 109 or 111 of the PEA suggests the contrary.

261 HTV denies Mr Kilpatrick's contention that HTV's approach would give no operation to s 99(a)(iii)(B) of the PEA. HTV submits: 'Section 99 has work to do'.[446] I note the generalised reference to s 99 as a whole, as distinct from s 99(a)(iii)(B) in particular. HTV refers to 's 99' as an element of a cause of action for compensation under Part 5.[447] HTV submits that ss 98 and 99 must be read and applied together; and that there are several elements to a cause of action under ss 98(1) and 99.[448] HTV submits that the question whether a landholder's circumstances fall within s 99(a)(iii)(B) can only be considered and determined retrospectively, in the exercise of this Court's original jurisdiction under Part 5 of the PEA or VCAT's original jurisdiction under that Part. However, in my view, that simply cannot be correct. The question of whether a particular application to VCAT for a review of permit conditions should be disallowed on the public purpose ground could only ever fall for consideration and determination as part of VCAT's disposal of that very application for review - i.e. contemporaneously, not retrospectively - and in the exercise of one or more of the various powers available to VCAT in the discharge of its review jurisdiction. Hence, in my view, HTV does not articulate in its written reply how, if HTV's submissions under ground 1 were accepted, s 99(a)(iii)(B), in particular, could ever be successfully invoked in support of a cause of action for compensation.[449] In my view, HTV's construction of the relevant legislation would indeed give no operation at all to s 99(a)(iii)(B), as Mr Kilpatrick contends.

262 I now set out almost verbatim[450] the remainder of HTV's written reply under the ground 1 heading, which comprises paragraphs [15]-[20] thereof:

1. Further, in so far as Mr Kilpatrick submits that the Tribunal had power under s 99(a)(iii)(B) to make a 'disallow the application' finding on review, there is no such power. Properly construed, in context and having regard to related enactments (the VCAT Act and the LACA), s 99 is not an empowering provision. As noted, the section prescribes the circumstances in which a right to, or liability for compensation relating to, planning blight arise.[451] The words 'and the Tribunal disallows an application for review... of the condition on the ground that the land is or may be required for a public purpose' are a statement of fact - namely, of the reason why the Tribunal, in the antecedent exercise of its review jurisdiction (under s 80(1) of the [PEA]), determined to dismiss (or disallow)[452] an application for a review of a responsible authority's decision regarding a permit. Any determination of the Tribunal to that effect would not involve the Tribunal itself deciding whether the land is or may be required for a public purpose. Rather, it would involve the Tribunal accepting evidence from, relevantly, [HTV] to that effect, and the Tribunal deciding to dismiss (or disallow)[453] the application for review of conditions for that reason.
2. The powers of the Tribunal on review are contained in s 85. Those powers are strictly[454] limited. The Tribunal's sole function was to determine Mr Kilpatrick's applications for review. Relevantly, on a conditions review, its function was to consider the conditions required by the Council as responsible authority and the reason/s why those conditions were imposed by the Council, and was to decide whether they ought remain having regard to, among other things, the position of the referral authority as regards the need for the subject land for a public purpose. The Tribunal failed to exercise that jurisdiction.
3. In response to [17] of Kilpatrick's Submissions, the Tribunal Member did not exercise review jurisdiction. The Senior Member rejected the Authority's submission that the matter before him was a standard conditions review, and made the 'disallow the application order' in 'what would otherwise be a 'conditions appeal'.' Further, the Senior Member eschewed the need to make conventional planning merits findings.
4. In relation to the judgment of [Day], J D Phillips J (as his Honour then was) was concerned with a claim for compensation pursuant to s 98(2) of the [PEA] in circumstances where the Administrative Appeals Tribunal had dismissed an appeal against the failure by a responsible authority to determine a series of applications for permits which were inconsistent with the concept plan incorporated into the planning scheme. The question for his Honour was whether the dismissal of an appeal against the failure by the Tribunal (as opposed to the refusal of a permit by a responsible authority) engaged the terms of s 98(2) of the [PEA]. Accordingly, his Honour's comments about s 99(a)(iii) were obiter and the question does not appear to have been debated before his Honour.
5. Further and in any event, JD Phillips J did not conclude that the Tribunal had jurisdiction to make an order of the nature in issue here. Instead, his Honour considered that it had the power to make a declaratory order as an incident of the power under s 85(1)(a) (the power to direct that a permit not be granted). Thus, his Honour did not conclude that there was any stand-alone 'jurisdiction/power' as the Senior Member did in this case. Rather, the power to declare that the land was needed for a public purpose was an incident (or 'amplification') of the exercise [of] power on review. As discussed in paragraphs [16] and [17] above, the Senior Member did not perform the de novo review that was required of him in respect of Mr Kilpatrick's applications.
6. The Court should instead follow the decision of Anderson J in Van der Meyden v Melbourne and Metropolitan Board of Works [1980] VicRp 29; [1980] VR 255, referred to but distinguished by JD Phillips J in Day. The Authority will address the Court orally about these decisions.

Paragraphs [15]-[17] of HTV's written reply are repetitive of submissions that HTV had already advanced and upon which I have already commented and will further comment in due course. Paragraphs [18]-[19] mainly relate to Day, a case that has already been mentioned many times. The submissions in paragraphs [18]-[19] do not do justice to the judgment of JD Phillips J in Day. This will appear more clearly as I return to Day from time to time. In paragraph [20] of its outline, HTV invites this Court to follow, instead of Day, the judgment of Anderson J in Van der Meyden v Melbourne Metropolitan Board of Works ('Van der Meyden'),[455] a case treated by JD Phillips J in Day as having been overtaken by subsequent statutory changes. HTV foreshadows addressing the Court orally about both decisions at the hearing. In fact, Mr Goubran KC made only passing reference to Van der Meyden at the oral hearing, while he did make extensive reference to Day. I will deal with Mr Goubran KC's oral submissions in those respects in due course.

263 The terms of HTV's proposed ground 2 are set out above. HTV pleads that, if and insofar as VCAT purported to exercise review jurisdiction under s 80 of the PEA (which HTV denies), VCAT erred in one or more ways, described by HTV as follows:

(a) that VCAT failed to engage with the provisions of s 84B of the PEA and failed to exercise its powers under s 85;

(b) that VCAT failed to take into account the position of HTV, which position it was 'bound to take into account'; or

(c) that, in the proper exercise of its jurisdiction, VCAT should have set aside the decisions of the responsible authority, directed that the relevant planning permits not contain the 'contested conditions', and allowed the applications for review.

264 In HTV's outline, HTV seeks to support these proposed grounds. However, the submissions made in the outline do not follow the order of the pleadings; and they purport to include contentions that are not covered by the pleadings. Moreover, they are quite unconvincing.

265 Initially,[456] HTV contends that, because Mr Kilpatrick had applied under s 80 of the PEA for review of the conditions in question, VCAT's review jurisdiction was 'clearly invoked'; that VCAT was then obliged, by virtue of s 51 of the VCAT Act, to conduct a de novo review; but that VCAT failed to do so. However, these contentions are not covered by the terms of proposed ground 2. In any event, s 51 of the VCAT Act does not always oblige VCAT to carry out de novo reviews. In some cases, at least, it will be open to VCAT to carry out a more limited kind of review.[457]

266 HTV proceeds to contend that VCAT's task under s 51 of the VCAT Act was controlled by s 84B(1) of the PEA.[458] HTV submits that s 84B(1) picked up s 60 of the PEA and made it applicable to VCAT, with the result that VCAT was required or entitled (as the case may be) to consider the matters that the Council had been required or entitled to consider in relation to Mr Kilpatrick's permit applications.[459] However, with one exception - itself quite misconceived - HTV has not even attempted to identify any particular matter that VCAT was obliged by s 84B(1) to consider but failed to consider.[460]

267 HTV then refers to the powers conferred on VCAT by s 85 of the PEA upon a review.[461]

268 Next, HTV cites a series of cases for the proposition that VCAT 'stands in the shoes' of the original decision-maker and carries out a review on the basis of the facts and the law in place at the time that VCAT's decision is made.[462] As indicated above,[463] that proposition is not always applicable.

269 Further, as HTV itself notes,[464] most of the cases referred to by HTV in this context related to planning scheme amendments made between the time of the initial decision and the time of the decision on review or appeal. HTV asserts that, nevertheless, the principles stated in those cases 'apply equally to a change of position by the referral authority'. I accept that VCAT would usually be wise, and in many cases may even be obliged, to consider the latest position of the referral authority. However, as already mentioned, it was common ground at VCAT,[465] and it has been accepted in Victoria for about 20 years at least,[466] that neither the latest position of the referral authority (nor any previous position of the referral authority for that matter) is binding on VCAT. In contrast to a planning scheme, the position of the referral authority is not law.

270 HTV goes on to assert that, in the present case, VCAT held that HTV's latest position in relation to the planning conditions was irrelevant.[467] HTV submits, on that basis, that VCAT was in breach of s 84B(1) of the PEA. As will further appear, HTV's premise for this submission is mistaken. Moreover, it is pellucidly clear that VCAT did consider HTV's latest position, and that VCAT did so very carefully.

271 As the final point in HTV's outline under the ground 2 heading, HTV submits that, once its new position at VCAT emerged, the scheduled hearing had become otiose, the applications for review had become moot and the only thing remaining was the formalisation of the consequential outcome.[468] Citing the 2013 decision of VCAT in Friends of the Surry Inc v Minister for Planning[469] as a supposedly analogous case, HTV submits that, in the present case, the formal steps that VCAT should have taken were to direct that the relevant planning permits not contain the conditions in question and, to that extent, to 'allow' the applications for review.[470] However, in my view, Friends of the Surry is by no means analogous. In that case, the parties agreed, and VCAT accepted, that the proceeding before VCAT had become moot. The only question was as to the proper form of order to reflect that fact. In the present case, by contrast, although HTV had initially asserted at VCAT, particularly in its pre-hearing VCAT submissions,[471] that the VCAT proceedings should be regarded as moot, HTV ultimately conceded, in effect, at VCAT that the proceedings were not moot.[472] In any event, neither Mr Kilpatrick nor VCAT itself accepted that the proceedings were moot. And in truth, of course, the VCAT proceedings were not moot. Far from it. Hence, Friends of the Surry does not assist HTV in this Court at all.

Ground 2: the arguments in Mr Kilpatrick's written submissions

272 In his written submissions, Mr Kilpatrick contends that HTV's arguments under ground 2 misconstrue the relevant statutory provisions and authorities.[473]

273 Mr Kilpatrick submits that the task for the Tribunal under ss 85 and 99(a)(iii)(B) was to determine whether the applications for review of the conditions in question were to be disallowed on the ground that the land is or may be required for a public purpose.[474]

274 According to Mr Kilpatrick's submissions, nothing in any of the cases cited by HTV required VCAT to disregard the existence of the conditions as at the time of VCAT's determination.[475]

275 Similarly, Mr Kilpatrick submits, s 84B(1) of the PEA did not require VCAT to disregard the existence of the conditions. To the contrary, he submits, VCAT was required to have regard to the fact that the permits contained the conditions.[476]

276 Mr Kilpatrick submits that, to the extent that VCAT was required to have regard to any decision or comments of the referral authority made at or shortly prior to the time of VCAT's determination, it is clear that VCAT did so.[477] Mr Kilpatrick points out that deletion of the conditions would have resulted in the permits allowing the construction of dwellings within the alignment of the Transport Corridor. Mr Kilpatrick submits that VCAT found that to be an unacceptable outcome.[478]

277 Mr Kilpatrick further submits that VCAT's statement that the change in position of HTV was 'irrelevant' was made in reference, only, to the requirement under s 99(a)(iii)(B) that the conditions be unacceptable to the permit applicant.[479]

278 Mr Kilpatrick reiterates that VCAT clearly had regard to HTV's ultimate position when VCAT came to consider the issue of whether or not the land 'is or may be required for a public purpose'.[480]

279 Mr Kilpatrick submits again (as he does in relation to ground 1) that HTV's approach would accord no operation or effect to s 99(a)(iii)(B).[481] According to Mr Kilpatrick, HTV's approach would leave a permit applicant who came within the circumstances set out in s 99(a)(iii)(B) without recourse to the statutory scheme of compensation set out in Part 5 of the PEA.[482] He submits that HTV's approach would be contrary to the purpose of Part 5 of the PEA, and is to be avoided in the interpretation and application of the PEA.[483]

280 In its written reply,[484] HTV commences its submissions under the ground 2 heading by referring to and repeating certain submissions it had made under the ground 1 heading - namely, in summary, that VCAT's powers under s 85 of the PEA are 'strictly limited'; that VCAT's function in this case 'was to consider the conditions... and to decide whether they ought remain having regard to, among other things, the position of the referral authority'; that VCAT did not do this; and that, therefore, VCAT did not exercise review jurisdiction. HTV then says that its other submissions under this heading are put without prejudice to that position. (This is, of course, another reflection of the overlap between HTV's proposed grounds of appeal).

281 Next,[485] HTV takes issue with Mr Kilpatrick's contentions about VCAT's 'task... under ss 85 and 99(a)(iii)(B)'. HTV says that s 99 does not specify any task for VCAT on review, but rather prescribes the circumstances in which, in the later exercise of its original jurisdiction to determine disputed claims for compensation, VCAT may find a right to compensation and the liability of a government authority to pay compensation.

282 Here again, HTV is harking back to its arguments under proposed ground 1; and in doing so, HTV is making a transparent, but misconceived, attempt to cause Mr Kilpatrick to fall between statutory stools. HTV proceeds to say:[486]

As noted above, the words 'and the Tribunal disallows any application for review of the... condition on the ground that the land is or may be required for a public purpose' describe the outcome of the anterior review process.

I would draw attention here to the expression 'the outcome of the anterior review process'. What occurred at VCAT in this case was an 'anterior review process'. As the above recitation of the course of the proceedings at VCAT shows, the relevant 'process' was commenced and conducted by Mr Kilpatrick as a group of applications under s 80 of the PEA for 'review' of the conditions in question. VCAT's review jurisdiction was thus engaged. The scope of that jurisdiction, and the scope of the powers available to VCAT in the discharge of that jurisdiction, can be seen from, principally, the interlinked provisions of ss 80, 84AB, 84B, 85 and 99(a)(iii)(B) of the PEA, together with the abovementioned provisions of the VCAT Act, including especially s 51.[487] Given the way in which Mr Kilpatrick had presented and argued his case at VCAT, which included express reliance by his counsel on ss 80, 84B, 85 and 99(a)(iii)(B) of the PEA,[488] the Tribunal was entitled - indeed required - in the exercise of its review jurisdiction to consider whether or not to determine the applications for review in the particular manner contemplated by s 99(a)(iii)(B). In that sense, s 99 did specify a task for VCAT, as part of the review. The process at VCAT was indeed 'anterior' to something - it was anterior to Mr Kilpatrick's intended (later) claim for compensation. And, as it happened, the process at VCAT led to a significant 'outcome', namely a decision by VCAT that each application for review be disallowed on the public purpose ground. That outcome will presumably assist Mr Kilpatrick when he does make his intended future claim for compensation. Despite HTV's best efforts, Mr Kilpatrick does not fall between statutory stools.

283 HTV proceeds to contend that Mr Kilpatrick had misstated HTV's argument as to the significance of the existence in fact of the conditions in question as at the time of VCAT's determination.[489] Given the elusiveness of HTV's argument in this regard, that may possibly be so. But whether or not Mr Kilpatrick misstated HTV's argument in this regard does not matter. There is no doubt that the conditions in question remained significant despite HTV's purported change of position. This debate goes nowhere.

284 Next,[490] HTV makes the rather staggering assertion that, even if VCAT's comment[491] about the irrelevance of HTV's ultimate position were properly to be understood as referring, only, to its irrelevance to the question of whether the conditions had been 'not acceptable' to Mr Kilpatrick (for the purposes of s 99(a)(iii)(B)),[492] nevertheless (HTV says) it would remain true that 'at no point... did [VCAT] have regard to [HTV's] position at the time of the review'. In my view, VCAT's comment was properly to be understood in the limited way contended for by Mr Kilpatrick, especially in light of the fact that HTV's ultimate position before VCAT was indeed irrelevant to the question whether the conditions were 'not acceptable' to Mr Kilpatrick. In any event, it is blindingly obvious that VCAT did have regard to HTV's position as at the time of the review. Indeed, VCAT paid very close attention to HTV's (professed) position as at that time; so much so that VCAT felt impelled to the conclusion - a rare one for any tribunal or court in relation to a governmental party - that HTV's ultimate position before VCAT was not arrived at with 'clean hands'.[493] Further, in my view, as foreshadowed above,[494] HTV's premise that VCAT was required by s 84B of the PEA to take into account HTV's new position (as expressed for the first time just before the VCAT hearing) is fundamentally mistaken in law. Section 84B is only concerned with matters that the decision-maker below properly took into account or properly had regard to, or matters that the decision-maker below was required to take into account or to have regard to. A new position adopted by a referral authority during a VCAT proceeding does not amount to such a matter.

285 Next,[495] HTV disputes Mr Kilpatrick's argument that HTV's approach would leave s 99(a)(iii)(B) with no work to do. As indicated above,[496] Mr Kilpatrick had made that same argument both in relation to ground 1 and in relation to ground 2. I have already rejected, with reasons,[497] HTV's attempt, in the context of ground 1, to meet Mr Kilpatrick's argument on this point. HTV's further attempt to meet that argument, in the context of ground 2, is no different and no better. It is rejected for the same reasons.

286 Finally, under this heading, HTV submits that it is nonsensical to speak of a permit applicant (like Mr Kilpatrick) meeting the circumstances set out in s 99(a)(iii)(B).[498] According to HTV, the circumstances of a permit applicant are only relevant in determining whether the permit applicant has suffered financial loss etc for the purposes of s 98(1)(a). HTV submits that the 'Tribunal or Court' is not required, under s 99, to 'separately (and again)' consider the circumstances of the permit applicant. Rather, HTV says, the Tribunal or Court is required to consider the relevant event said to give rise to the right to, and the liability to pay, compensation. According to HTV, the relevant event in the case of s 99(a)(iii)(B) is the outcome of the prior application for review of the relevant permit conditions. But that submission involves much the same distortion of the statutory scheme as is dealt with in paragraphs [281]-[282] above. It amounts to a repeated attempt by HTV to cause Mr Kilpatrick to fall between statutory stools. Like HTV's previous attempt, it involves viewing matters only in retrospect, i.e. only from the point of view of a putative proceeding in VCAT or in this Court to determine a disputed claim for compensation. But, of course, Mr Kilpatrick has not yet made any such claim; and no such proceeding is on foot. The review proceedings that Mr Kilpatrick did bring at VCAT were appropriately anticipatory of a future claim by him for compensation. Those review proceedings represented Mr Kilpatrick's last remaining statutory opportunity to raise the 'public purpose ground' issue. That issue then fell to be determined once and for all in the very proceedings at VCAT that are presently in question. Any issue relating to Mr Kilpatrick's own circumstances that might arise in or in relation to Mr Kilpatrick's contemplated future claim for compensation would be a different issue. Despite HTV's further best efforts, Mr Kilpatrick still does not fall between statutory stools.

287 The terms of HTV's proposed ground 3 are set out above. In short, the complaint is that VCAT erred in concluding that the requirements of s 99(a)(iii)(B) were satisfied. Both in the amended notice of appeal and in HTV's outline,[499] this ground is expressed to proceed on the assumption (which HTV denies) that VCAT had 'jurisdiction' to make a 'disallow the application' order under s 99(a)(iii)(B) of the PEA. HTV's use of the word 'jurisdiction' in expressing this assumption is in conflict with its own later submission,[500] mentioned above,[501] to the effect that 'jurisdiction' is authority to decide a matter and does not incorporate the power to make orders or to grant remedies. However that may be, HTV pleads in its amended notice of appeal,[502] and argues in its outline, that VCAT erred in concluding that the requirements of s 99(a)(iii)(B) were satisfied, in that:

(a) VCAT exercised that jurisdiction in the absence of an anterior, and necessary, finding in the exercise of its review jurisdiction under s 80 of the PEA;

(b) it was not open to VCAT to conclude that the land is or may be required for a public purpose in circumstances where HTV did not require the permit conditions to remain;

(c) it was not open to VCAT to conclude that the 'contested' permit conditions were not acceptable to Mr Kilpatrick in circumstances where:

(i) there was no evidence from Mr Kilpatrick to this effect;

(ii) Mr Kilpatrick did not seek that the 'contested' permit conditions be removed from the permits; and

(iii) Mr Kilpatrick sought, in his applications to VCAT, that the applications for review be dismissed (specifically 'disallowed');

(d) VCAT wrongly took into account an alleged lack of clean hands by HTV when a finding to that effect was irrelevant and therefore not open to VCAT.

288 As to point (a), HTV does not actually identify, either in the amended notice of appeal or in HTV's outline or anywhere else,[503] any 'finding' (properly so called) that VCAT was required to make but failed to make. Instead, at this point of HTV's outline, HTV says that the 'relevant section' (meaning, apparently, s 99(a)(iii)(B)) is clear and 'requires the Tribunal to conduct a de novo review of the imposition of any permit condition in a permit granted by the responsible authority, and to disallow (dismiss) the "application for review"'.[504] Having made that puzzling submission, HTV continues:[505]

The jurisdiction invoked by Mr Kilpatrick remains unexercised. The Tribunal failed to do that which it was obliged to do.

There appears to be no basis for HTV's contention that VCAT omitted to make some 'finding' that was 'anterior' and 'necessary' in the exercise of its review jurisdiction. To the extent that HTV relies on the proposition that VCAT was required to conduct a de novo review of the imposition of the permit conditions, I would observe that, in accordance with the legal principles discussed above,[506] VCAT was under no such obligation in this case, and was entitled to dispose of the proceedings before it by dealing only with the real issues as they had been framed by the parties for VCAT's determination. That is what VCAT did in this case. It did so in the due and proper exercise of its review jurisdiction, in my opinion. In the end, VCAT concluded, in effect, that the conditions should remain. On the evidentiary material before it, and on the parties' arguments before it, VCAT was fully entitled to arrive at that conclusion. VCAT sought to give effect to its conclusion by making an order disallowing the applications for review. As I will further explain in due course, I see no error in the making by VCAT of an order in that form.

289 I turn to point (b), i.e. to the question of whether it was open to VCAT to find that Mr Kilpatrick's land 'is or may be required for a public purpose' in circumstances where HTV did not require the permit conditions to remain. This is really a contention of fact, dressed up in the language of a question of law. Plainly, the mere circumstance that HTV did not require the permit conditions to remain did not, of itself, establish that Mr Kilpatrick's land was not land that 'is or may be required for a public purpose' within the meaning of s 99A(iii)(b) of the PEA. Mr Kilpatrick's land had been reserved by an instrument (PAO 5) which, as envisaged by s 98(1A), 'expressly states as a purpose "to reserve land for a public purpose"'. Moreover, there was overwhelming evidentiary material before VCAT that Mr Kilpatrick's land remained land that 'is or may be required for a public purpose', namely, the public purpose of PAO5. That evidentiary material was unchallenged. VCAT was plainly entitled to accept it, as VCAT obviously did. It amply warranted a finding that Mr Kilpatrick's land 'is or may be required for a public purpose' - all the more so in the light of VCAT's relevantly unchallenged finding that HTV's position on the conditions was not arrived at with clean hands.

290 In the same paragraph of its outline,[507] HTV makes a cryptic submission to the effect that, if an application under s 80 of the PEA for review of permit conditions is to be disallowed on the ground that the relevant land is or may be required for a public purpose, the disallowance must be 'connected' to the continued existence of the permit conditions; and that, here, VCAT erred in failing to apply that 'connection'. This submission does not appear to be covered by ground 3(b) or by any other ground of the amended notice of appeal. No authority for the alleged legal requirement is cited, and no particulars of VCAT's alleged failure to comply with the requirement are given, whether here or anywhere else in HTV's outline. However, it appears from a later document - HTV's written reply - that HTV was here seeking to rely on (rather than distance itself from) something said by Phillips J in Day. I will come back to this when I reach the relevant part of HTV's written reply.

291 I turn now to point (c), i.e. to the question of whether it was open to VCAT to conclude that the permit conditions in question were 'not acceptable' to Mr Kilpatrick. HTV begins the relevant part of its outline[508] with a specious complaint that, while Mr Kilpatrick's written applications to VCAT for review had expressly recited that the conditions were 'not acceptable' to him, and while assertions to the same effect had been made on his behalf at VCAT from the Bar table, nevertheless there had been no 'evidence' from Mr Kilpatrick to that effect at VCAT. It is trite law that VCAT is not bound by the rules of evidence.[509] Further, as indicated above,[510] at VCAT much is accepted from the Bar table, especially in planning cases. I note that, in this very case, HTV itself adduced no evidentiary material at all.[511] In any event, in addition to the statements contained in the VCAT application documents themselves (which had been prepared by Mr Kilpatrick's solicitors and which were not challenged and which become part of the material before VCAT), and in addition to the fact that Mr Morris QC squarely told the Tribunal that the conditions in question were 'not acceptable' to Mr Kilpatrick, Mr Morris QC made it clear that Mr Kilpatrick was saying this in a formal sense, i.e. in accordance with what I have described as the conventional understanding of the relevant provisions of the PEA.[512] Moreover, at VCAT, far from making any point about the absence of 'evidence' from Mr Kilpatrick on this question, HTV actually conceded that the 'not acceptable' requirement was satisfied, as I have already recorded.[513] It is simply not open to HTV to complain now about the absence of anything further from Mr Kilpatrick at VCAT by way of 'evidence' as to the 'not acceptable' point.[514]

292 Next,[515] HTV repeats the cute submission that, because Mr Kilpatrick wanted the applications for review to fail, and did not (actively) seek that the conditions in question be removed from the permits, and sought an order that the applications for review be disallowed, VCAT should have concluded that the conditions in question were in fact acceptable to him. This submission flies in the face of HTV's specific concession at VCAT about the 'not acceptable' requirement, as mentioned in the previous paragraph. Nor can it stand with HTV's concession at VCAT that the test or token approach that Mr Kilpatrick had followed was legitimate and effective. It cannot stand, either, with HTV's subsequent decision in this Court not to challenge that view. This submission, too, is simply not open to HTV in this Court.[516]

293 As to point (d), i.e. as to the relevance of VCAT's finding that HTV lacked 'clean hands', HTV submits in its outline that the bona fides or otherwise of HTV was irrelevant to the exercise of VCAT's jurisdiction/power 'under' s 99(a)(iii)(B).[517] Here, HTV itself (rightly) assumes that VCAT's 'clean hands' finding amounted to a finding that HTV was not acting in good faith. In my view, the good or bad faith of HTV - as a determining referral authority dealing with Mr Kilpatrick's applications to the Council for planning permits and as a statutory party at VCAT formulating and expressing its position on the conditions in question - was plainly relevant to the question of whether or not the land 'is or may be required for a public purpose'. Finally, in this context, HTV relies on Three Sisters Wind Farm; but there is nothing in that case to support the proposition that the good faith or otherwise of HTV was irrelevant in this matter.

Ground 3: the arguments in Mr Kilpatrick's written submissions

294 Mr Kilpatrick divides his written submissions in relation to ground 3 into four parts.

295 First,[518] Mr Kilpatrick addresses HTV's contention that VCAT was required to conduct a de novo review but failed to do so.

296 Mr Kilpatrick submits that s 99(a)(iii)(B) 'requires a review of whether the land is or may be required for a public purpose'; and he says that VCAT 'carried out that assessment'.[519] This submission of Mr Kilpatrick, in itself and shorn of its context, might be thought problematic. It does not refer to s 80 or s 85 of the PEA or to s 51 of the VCAT Act or to any of the other provisions of the PEA or of the VCAT Act mentioned above as being potentially available sources of power for VCAT in this matter.[520] However, consistently with Mr Kilpatrick's submission, the truth is that VCAT's relevant powers (as distinct from its jurisdiction) were amplified, or at least illuminated, by implications to be drawn from s 99(a)(iii)(B) of the PEA. This had been adverted to earlier in Mr Kilpatrick's written submissions, particularly in [12] and [13] thereof (in relation to proposed ground 1)[521] and in [20] thereof (in relation to proposed ground 2).[522] In any event, the real question is not whether each and every part of Mr Kilpatrick's submissions in this Court is comprehensive and entirely correct, but whether VCAT erred in law, on a material matter, and in such a way as to warrant the setting aside of its decision and order. In my view, VCAT did not so err.

297 Returning to Mr Kilpatrick's written submissions relating to HTV's 'de novo review' point, I note that Mr Kilpatrick submits that VCAT did consider the nature of the conditions in question and their effect.[523] Mr Kilpatrick refers to the Tribunal's comments about the absence of any conventional planning justification, apart from the existence of PAO5, to warrant HTV's original requirement for the imposition of conditions to the effect that the dwellings be placed outside the reservation. Mr Kilpatrick then submits that VCAT found that there was no credible case that the dwellings could be built within the reservation and yet co-exist with the Transport Corridor (if it were to be built).[524] Thus, according to Mr Kilpatrick, VCAT considered the merits and effect of the conditions to the extent warranted. I agree.

298 Secondly, as to HTV's contention that it was not open to VCAT to conclude that the land 'is or may be required for a public purpose' where HTV did not require the conditions to remain, Mr Kilpatrick submits that this amounts to a complaint about the merits of VCAT's decision, as distinct from a point of law appropriate to be raised on an appeal under s 148 of the VCAT Act.[525] Once again, I agree.

299 Mr Kilpatrick further submits that it was open to VCAT to find that the land 'is or may be required for a public purpose'.[526] Mr Kilpatrick makes the following points in this regard:

(a) the land was subject to PAO5 which includes, within the statement of its purpose:

To identify land which is proposed to be acquired by a Minister, public authority or municipal council.

To reserve land for a public purpose and to ensure that changes to the use or development of the land do not prejudice the purpose for which the land is to be acquired.

(b) there was no evidence that HTV no longer intended to acquire the land or that the intended public purpose, being the construction of the Transport Corridor, would no longer be pursued;

(c) HTV's ultimate position at VCAT that it no longer required the proposed dwellings to be moved out of the reservation did not mean that the land was not required for a public purpose;

(d) HTV's ultimate position at VCAT opened up for consideration whether it was good planning to allow construction of dwellings on land earmarked for a freeway and rail line.

As would already be evident,[527] I agree with Mr Kilpatrick on each of these points. It was clearly open to VCAT not to accept HTV's ultimate position on what was, in truth, an issue of fact and discretion - all the more so once VCAT concluded (as it was well entitled to do and as it did) that HTV was not acting in good faith.

300 Next,[528] Mr Kilpatrick attributes to HTV a contention that 'the mere fact of reservation of Mr Kilpatrick's land was insufficient to warrant a finding that the land is or may be required for a public purpose'. However, more accurately, HTV had contended that the fact of the reservation was insufficient to warrant such a finding in circumstances where HTV did not require the conditions to remain.[529] Mr Kilpatrick observes here that the very purpose of a public acquisition overlay is to identify land that is or may be required. I need not decide whether, as a matter of principle, the mere existence of a reservation means that a responsible authority, or VCAT, as the case may be, must always be satisfied that the reserved land 'is or may be required for a public purpose' within the meaning of ss 98 and 99 of the PEA. Clearly enough, despite a reservation, it may still be open to a responsible authority to determine that an application for a particular permit should not be refused at all, or should not be refused on the public purpose ground.[530] Likewise, despite a reservation, it might still be open to VCAT to determine that an application for review of particular conditions should not be disallowed at all, or should not be disallowed on the public purpose ground. But none of that is significant here. HTV did not suggest in its amended notice of appeal or in its written submissions that VCAT proceeded on the basis that reservations of land in the form of public acquisition overlays are always conclusive as to whether or not the land 'is or may be required for a public purpose'. That is to say, no such point of law was raised by HTV in its documentary case. Nor has HTV applied for leave to amend so as to raise such a point of law.[531] As to the facts, the evidence that Mr Kilpatrick's land 'is or may be required for a public purpose', far from being insufficient, was, as I have already said, overwhelming.[532] Further, at VCAT, HTV did not identify any planning ground, or any ground at all, as being apt to displace the public purpose ground as an appropriate ground, or as the appropriate ground, on which to disallow the applications for review.[533] Nor, in this Court, has HTV identified any such ground. That is not how HTV has ever put its case. It follows, in my view, as I have already indicated, that, in the circumstances of this case, VCAT was entitled to find, as it did, that Mr Kilpatrick's land 'is or may be required for a public purpose', and that (subject to HTV's arguments about the scope of VCAT's decision-making powers) VCAT was entitled to attach that ground to its ultimate decision, as it did.

301 In this same context, Mr Kilpatrick endeavours[534] to deal with the abovementioned cryptic submission in HTV's outline to the effect that, in order to satisfy the conditions of s 99(a)(iii)(B), the disallowance of the application for review must be 'connected' to the continued existence of the subject conditions.[535] Mr Kilpatrick points out that the mere fact that HTV had moved away from supporting the conditions did not change the fact that the permits were subject to the conditions at the time of VCAT's determination. That, of course, is true. But it may not be an apposite answer to the particular point which, as mentioned above, HTV had apparently been trying to make in this regard. As already indicated, I will return to what now appears to be HTV's point when I come to the relevant part of HTV's written reply.[536]

302 Thirdly, Mr Kilpatrick turns to HTV's contention that it was not open to VCAT to find that the conditions were not acceptable to him.[537] Mr Kilpatrick refers to certain matters already mentioned above, namely, that the material before VCAT included the applications for review, which in turn included statements that the conditions were not acceptable to Mr Kilpatrick; and that this position was confirmed by Mr Morris QC during the VCAT hearing. Mr Kilpatrick also notes that the position was further confirmed in his post-hearing VCAT submissions.[538] He submits that there was no reason for VCAT to find otherwise. I agree. Moreover, I note again that, because of the relevant concession made by HTV at VCAT, it is not even open to HTV to make this complaint now.[539]

303 Turning to HTV's contention that VCAT should have found that the conditions were acceptable to Mr Kilpatrick because he wanted to fail on review, Mr Kilpatrick submits that this distorts the language of s 99(a)(iii)(B). I agree. I refer to what I have already said about HTV's contention to this effect.[540]

304 Fourthly and finally,[541] under ground 3, Mr Kilpatrick disputes HTV's contention that VCAT erred in having regard to HTV's lack of clean hands. Mr Kilpatrick submits that VCAT inferred from HTV's fluctuating positions that HTV was merely seeking to avoid a compensation claim. Mr Kilpatrick submits that this duly supported VCAT's finding that, apart from the existence of PAO5 itself, there were no planning policy considerations or site constraints justifying the original imposition of the subject conditions. He submits that these matters were not irrelevant. As already indicated several times above, I agree.

305 HTV commences its submissions relating to ground 3 in its written reply by repeating its contention that s 99(a)(iii)(B) does not require a review of whether land is or may be required for a public purpose, and its contention that, rather, s 99(a)(iii)(B) simply describes the outcome of an anterior review process.[542] However, as I have indicated above,[543] in my opinion, those contentions would, in effect, give no work to s 99(a)(iii)(B) at all, and would wrongly disregard the clear implication in s 99(a)(iii)(B) that, in a VCAT review under Part 4 of the PEA, an available course for VCAT to take is to disallow the application on the public purpose ground.

306 Next, HTV makes some general submissions as to the (limited) circumstances in which a VCAT decision may be overturned under s 148 by reference to a finding or findings of fact.[544] These submissions are not controversial. But in the end they do not assist HTV in this case.

307 HTV then purports to attack,[545] again, VCAT's finding of fact that Mr Kilpatrick's land 'is or may be required for a public purpose'.

308 In this regard,[546] HTV repeats its earlier submission that VCAT's finding to this effect overlooked entirely the changed position of HTV. That particular submission was and is plainly wrong, for the reasons I have given several times. Obviously, VCAT gave close consideration to HTV's changed position. Whether, in any event, any overlooking of HTV's changed position would have amounted to an error of law as distinct from an error of fact need not be considered.

309 In addition, HTV asserts[547] that VCAT's finding overlooked what HTV calls 'the uncontentious proposition that a reservation of land does little more than subject all changes in use to the requirement that the responsible authority first grant a permit'. (Again, this may or may not amount to an allegation of error of law, as distinct from an allegation of error of fact). No authority is explicitly given for HTV's 'uncontentious proposition'. However, from the context that immediately follows in HTV's outline, it appears that the proposition is drawn from a particular sentence in the judgment of JD Phillips J in Day,[548] to which I will come in a moment. Straight after stating the 'uncontentious proposition', HTV submits (my emphasis):[549]

Reservation in and of itself does not notionally commit the land in question to the purpose behind the reservation.

There is a footnote to this submission in HTV's written reply. It reads:

The impression one would get from reading this part of HTV's written reply is that, in Day, JD Phillips J must have been significantly downplaying the effect of reservation of land, and, in particular, that his Honour must have said something to the effect that the reservation of land does not even 'notionally' commit the land in question to the purpose behind the reservation. But that would not be a correct impression. It is true that, in Day,[550] in this context, JD Phillips J had said that reservation of land under a planning scheme is quite different from the zoning of land, in terms of legal consequences.[551] But, after developing that particular point briefly, his Honour went on to say (my emphasis):[552]

In other words, reservation does little more than subject all changes in use to the requirement that the responsible authority first grant a permit; it does not finally commit the land in question to the purpose behind the reservation.

310 This sentence is apparently the source of both HTV's 'uncontentious proposition' and of HTV's related submission that the reservation of land, in and of itself, does not (even) 'notionally' commit the land in question to the purpose behind the reservation. However, whereas one might expect (after reading the relevant part of HTV's written reply) to find the word 'notionally', or some synonymous expression, in the relevant part of the text of Day, what one actually finds there is the word 'finally'. The two words are very different, both in their ordinary meaning and in their effect in this context. The contextual aspect is brought home by the next two sentences of the judgment of JD Phillips J in Day, albeit that those next two sentences appear in a new paragraph:[553]

Reservation alone, or even proposed reservation, can nevertheless justify a claim for compensation under s 98(1) and it is appropriate that s 99 should then provide a 'trigger' to give rise to the right to claim compensation and the liability to pay compensation. That is the purpose of s 99_(a)_ and (b).

It is somewhat unfortunate, to say the least, that HTV uses the word 'notionally', rather than the word 'finally', in this part of its written reply. The unfortunate nature of this state of affairs is accentuated by the abovementioned[554] insistence by Mr Goubran KC at the oral hearing that HTV relies on everything contained in the written material filed on its behalf in this Court.

311 Next,[555] in its written reply, HTV submits that Day supports the proposition that the disallowance of an application for review must be causally connected with the continued existence of the subject conditions. This, apparently, is a reference to what I have described above as HTV's cryptic argument. [556] HTV goes on to submit that, in Day, JD Phillips J had said, in relation to s 98(2) of the PEA, that a refusal by the responsible authority to grant a permit on the ground that the land is or will be needed for a public purpose will only entitle the landholder to claim compensation if there is a causal link between the refusal and a need for the land for a public purpose. Indeed, JD Phillips J did say words to that effect.[557] And, with respect, so much may be readily accepted. Building on this proposition, HTV goes on to submit that, here, there needed to be a causal link between VCAT's disallowance of Mr Kilpatrick's applications for review and the need or potential need for the land for a public purpose. Again, so much may be accepted, notwithstanding that HTV had not previously identified this premise of its current argument. However, what certainly cannot be accepted is HTV's next submission, namely that, in the present case, in circumstances where HTV no longer contested the removal of the conditions, the requisite causal link was not satisfied.[558] As indicated many times above, VCAT was well and truly satisfied that there was a need or potential need for Mr Kilpatrick's land for the public purpose of the Transport Corridor.[559] Notwithstanding HTV's professed ultimate position at VCAT, VCAT was more than entitled to be so satisfied. Hence the causal link between the disallowance and the need for the land for a public purpose was fully established.

312 Finally, in relation to ground 3, HTV contends yet again that, in the absence of Mr Kilpatrick 'giving any evidence', VCAT should have inferred that the permit conditions were acceptable to him. This time, HTV cites Jones v Dunkel[560] in purported support of this contention. But, for the reasons I have already given several times, this contention of HTV is hopeless.[561] HTV proceeds to couple this hopeless contention with the fact that, ultimately, HTV did not oppose the removal of the permit conditions at VCAT; and HTV submits that the result is that the only finding open on the evidence was that Mr Kilpatrick's applications be allowed (and that the permit conditions be removed from the permits). But VCAT found that HTV's ultimate position had not been arrived at in good faith; and VCAT's finding to that effect is not relevantly challenged. Hence HTV has little or nothing to couple with its first mentioned (hopeless) contention. Accordingly, VCAT was certainly not compelled, on this account, to allow the applications. To the contrary, there is nothing in HTV's written arguments under proposed ground 3 to show that it was not open to VCAT to make an order that, at least in substance, disallowed the applications for review.

313 As mentioned above, the evidence before this Court was all in documentary form. In advance of the oral hearing, HTV had filed affidavit material that covered (so far as the parties deemed necessary or desirable) Mr Kilpatrick's permit applications to the Council, the subsequent processes at Council level and what had occurred at VCAT. This affidavit material was included in the (sizeable) Court Book. The whole of the Court Book, in turn, was placed before this Court by consent. In addition, near the end of the oral hearing, HTV provided the Court with a copy of the abovementioned small bundle of emails and attachments (concerning the path of the reservation in relation to the dwellings) that had been tendered belatedly by Mr Kilpatrick at VCAT.[562] No other documentary evidence was adduced. There was no cross-examination on the affidavit material. No witnesses were called at all.

314 The oral hearing in this Court was originally listed for 1-2 days. It began on Friday 9 June 2023, being the day prior to a long weekend. As indicated above, Mr Goubran KC appeared with Ms E Murphy of counsel for HTV. Mr Boston KC appeared with Mr Chiappi of counsel for Mr Kilpatrick. Mr Goubran KC was on his feet throughout the Friday. It was on the Friday afternoon, shortly after the luncheon adjournment, that Mr Goubran KC made his abovementioned statement that HTV maintained all of its proposed grounds of appeal and sought my adjudication on 'each and every one of them'.[563] During that Friday, Mr Goubran KC claimed, on more than one occasion, that he had been taken by surprise by matters I had raised with him; and that he would wish to file written submissions in due course on those matters. On one such occasion, when the topic being discussed was VCAT's finding that HTV had lacked 'clean hands', Mr Goubran KC told me in no uncertain terms that he would need to come back to the matter.[564] By the end of the Friday, it became clear that there would be a sufficient opportunity for any such matters to be dealt with orally, rather than in writing, in due course.[565] At the outset of the hearing on the Tuesday, Mr Goubran KC told me that he had 'reflected' over the long weekend about how best to address the Court from that point on, and that the remainder of his address would focus on three things - first, the specific terms of the order that was made by VCAT; second, the question whether that order accorded with VCAT's statutory powers and duties; and, third, a 'discrete' set of submissions about Day.[566] Mr Goubran KC did not say, at least in terms, either then or at any other time on the second hearing day, that he no longer intended to revisit the particular matters about which, on the Friday, he had foreshadowed making further submissions.

315 By lunchtime on the Tuesday, Mr Goubran KC was still on his feet. The parties then sought the allocation of a further hearing day or days. By consent, I fixed a further 1-2 hearing days, to commence some six weeks later on 24 July 2023. Mr Goubran KC continued addressing for the remainder of the Tuesday afternoon. On that Tuesday, certain additional topics were reserved or flagged for Mr Goubran KC to deal with subsequently. As mentioned above,[567] it was late on the Tuesday afternoon when Mr Goubran KC told me that HTV did not in any way concede any matters contained in its written submissions or in its amended notice of appeal.[568] At 4.20pm, Mr Goubran KC concluded his principal address. Mr Boston KC then spoke for about 5 minutes on behalf of Mr Kilpatrick. The matter was adjourned to Monday 24 July 2023. On that Monday, Mr Boston KC resumed his address and concluded it before the end of the morning. During Mr Boston KC's address, another two matters were flagged for the future attention of Mr Goubran KC. However, in his reply, as I will indicate below, Mr Goubran KC dealt with surprisingly few of the various matters that had been reserved or flagged for his future attention or submissions.

Things that occurred during, or emerged from, the oral hearing

316 I do not propose to give a comprehensive account of the oral submissions that were made in this Court, in circumstances where Mr Goubran KC's lengthy oral submissions followed, to a considerable extent, the terms of HTV's prior written submissions; in circumstances where, as mentioned above, HTV places great store on its prior written submissions and on the precise terms of its amended notice of appeal, all of which I have already recounted and commented on; and in circumstances where Mr Boston KC's comparatively brief oral submissions (to the extent that they remain significant) can be succinctly summarised. However, there were some notable developments at the oral hearing. Principally, Mr Goubran KC made the abovementioned important announcement that HTV was not going to challenge the legitimacy and effectiveness of test or token permit applications. I should give chapter and verse about that. I will also refer in some detail to what was said so emphatically by Mr Goubran KC about VCAT's finding that HTV lacked 'clean hands' and about his determination to return to that matter.[569] (As will be seen, Mr Goubran KC did not in fact return to that matter.) On the second hearing day, as part of his adjusted focus on whether VCAT's order was in accordance with its statutory powers and duties, Mr Goubran KC handed up copies of several cases not previously cited by HTV, and took me through them. I will refer to what Mr Goubran KC said about those cases, and I will refer also to some related, contrasting cases. Mr Goubran KC then took me through the judgment in Day in considerable detail, and while doing so he briefly mentioned the prior case of Van der Meyden. As foreshadowed above,[570] I will compare and contrast the written submissions of HTV relating to Day and Van der Meyden with Mr Goubran KC's oral submissions about those cases. That was the last matter dealt with in Mr Goubran KC's principal address. For his part, Mr Boston KC structured his address as a response to HTV's individual proposed grounds of appeal, adopting the same order as is used in the amended notice of appeal. Mr Boston KC made powerful points in relation to each proposed ground. I will summarise those points in due course. At the end of Mr Boston KC's address there seemed to be quite a number of matters for Mr Goubran KC to deal with in his oral reply. When I come to that stage, I will identify the most salient of those matters, with a view to comparing them with what Mr Goubran KC did and did not actually say in his reply.

317 I will deal with these various matters under the topic headings set out below, rather than strictly in accordance with the order in which the matters were dealt with at the oral hearing. It is as well to place at the top of the list three topics on which, at least to some extent, common ground emerged at the oral hearing:

(a) VCAT's relevant jurisdiction;

(b) Distinguishing between jurisdiction and power;

(c) Test or token permit applications;

(d) VCAT's finding that HTV lacked clean hands;

(e) Whether VCAT's order was in accordance with its statutory powers and duties: HTV's new cases and some related, contrasting cases;

(f) The cases of Day and Van der Meyden in more detail;

(g) Summary of Mr Boston KC's oral address as directed to HTV's proposed grounds of appeal;

(h) Matters apparently left for Mr Goubran KC to deal with in his oral reply;

(i) Mr Goubran KC's actual reply: a parting shot on materiality, but little else.

318 At a very early stage of the oral hearing, I made it evident that, subject to what Mr Boston KC might say, Mr Goubran KC did not need to persuade me that VCAT had no original jurisdiction in the proceedings below.[571] Any jurisdiction that VCAT had was, I thought, plainly review jurisdiction only. When the opportunity came for Mr Boston KC to address the Court on behalf of Mr Kilpatrick, he readily, and correctly, agreed.[572]

319 Mr Boston KC's acknowledgement that VCAT did not have original jurisdiction was immediately followed by a submission by him that VCAT did have review jurisdiction, i.e. jurisdiction to review the permit conditions identified in Mr Kilpatrick's applications for review.[573] That submission was plainly correct. VCAT's review jurisdiction was conferred on it expressly - principally by s 80 of the PEA, read with the VCAT Act.[574] This obvious point seems to be common ground too.[575]

320 As mentioned above,[576] in its written reply HTV sought to distinguish between jurisdiction and power as general legal concepts. HTV referred to the distinction between jurisdiction and power advanced by Gleeson CJ and McHugh J in Minister for Immigration & Multicultural & Indigenous Affairs v B & Anor.[577] The case in the High Court related to the question of whether the Family Court had had jurisdiction to entertain proceedings that had been brought against the Minister for Immigration and Multicultural & Indigenous Affairs for the release of children from immigration detention. The High Court decided that question in the negative. The passage in the judgment of Gleeson CJ and McHugh J referred to by HTV reads (citations included but renumbered):[578]

In a legal context the primary meaning of jurisdiction is 'authority to decide'.[579] It is to be distinguished from the powers that a court may use in the exercise of its jurisdiction.[580]

Mr Boston KC, in his address, acknowledged this statement of the distinction.[581] He went on to accept that 'there was a conflation of jurisdiction and power' in some of the submissions that had been put to VCAT on behalf of Mr Kilpatrick; and that there was 'some confusion' of language in VCAT's reasons.[582] He made clear that his client's contention now is that VCAT's only relevant jurisdiction in this matter was review jurisdiction, but that, nevertheless, VCAT had had the power to disallow Mr Kilpatrick's applications for review on the public purpose ground.[583] In other words, Mr Boston KC submitted that VCAT's ability to make a disallowance order on the public purpose ground was to be classified as comprising a power available in the exercise of VCAT's relevant review jurisdiction, rather than as constituting, itself, part of the jurisdiction of VCAT.

321 I respectfully agree that there is a distinction between VCAT's various jurisdictions, on the one hand, and the powers available to VCAT in the exercise of its respective jurisdictions.[584] Indeed in some contexts it can be essential to distinguish between the two. For example, in McKechnie v Victorian Civil and Administrative Tribunal ('McKechnie'),[585] I considered that it was essential to draw that distinction in discerning what VCAT was entitled to do in relation to an invalid freedom of information request. Returning to the present case, I agree, also, that it is more precise to classify any ability of VCAT to make a disallowance order as amounting to a species of power rather than a species of jurisdiction. On the other hand, in defence of VCAT (and of the parties themselves), I note that one may sometimes be forgiven for conflating or confusing the two concepts. Thus I note that in Minister for Immigration & Multicultural & Indigenous Affairs v B & Anor itself, in an earlier part of the same paragraph that contains the passage quoted above,[586] Gleeson CJ and McHugh J had said that jurisdiction 'is a term used with a variety of meanings'. Moreover, in the very passage quoted above, their Honours refer with apparent approval to a part of the judgment of Toohey J in Harris v Caladine[587] in which his Honour had said (citations omitted):[588]

The distinction between jurisdiction and power is often blurred, particularly in the context of 'inherent jurisdiction'. But the distinction may at times be important. Jurisdiction is the authority which a court has to decide the range of matters that can be litigated before it; in the exercise of that jurisdiction a court has powers expressly or impliedly conferred by the legislation governing the court and 'such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred'.

322 Likewise, in the second edition of his leading text on this subject, namely Authority to Decide: The Law of Jurisdiction in Australia,[589] Justice Leeming[590] says, citing a multitude of cases, including many of great authority (all citations here omitted):[591]

'Jurisdiction' is often said to mean authority to decide. That is the 'primary meaning' of the term, or its meaning in its 'strict sense'. Yet, as those qualified definitions suggest, 'jurisdiction' has a range of meanings. It is a 'generic term generally signifying authority to adjudicate' and a 'protean term that is used in a variety of senses and takes its colour from the context'. 'It is used in a variety of senses, some relating to geography, some to persons and procedures, others to constitutional and judicial structures and powers'. Multiple meanings of 'jurisdiction' may be found within the Commonwealth Constitution, and indeed even in the same section of a statute. Frankfurter J once said it was 'a verbal coat of too many colours'. More recently Scalia J said that it 'is a word of many, too many, meanings', and Ginsberg J, writing for a unanimous United States Supreme Court, conceded that '[t]his Court, not less than other courts has sometimes been profligate in its use of the term'.

One intention of this book is to avoid 'loose talk about jurisdiction'. Three quarters of a century after Frankfurter J's admonition, Kiefel CJ, Gageler and Keane JJ observed in 2018 that '[t]he terminological tangle in which the Full Court entwined itself in the decision under appeal shows how readily the terminology of jurisdiction, and the associated terminology of jurisdictional error, can be misunderstood'. To the same effect, Edelman J said that '[i]n 1929, Gordon observed in relation to jurisdiction that 'in no branch of English law is there more confusion and conflict'. This case illustrates that, nearly a century later, there is still significant difficulty'. It is as well at the outset to be as clear as possible about the different meanings the term 'jurisdiction' bears in different contexts.

323 In the present case, it cannot be denied that VCAT had what is known as subject matter jurisdiction, i.e. that VCAT had authority to entertain and deal with Mr Kilpatrick's applications for review made under s 80 of the PEA. There remains HTV's contention that VCAT did not have the power, in the exercise of that jurisdiction, to make an order of the kind that it made, or to make an order in the form of the order that it made. HTV says, primarily, that VCAT could never possess such power. HTV also says, in the alternative, that VCAT failed to comply with an indispensable condition or conditions on the exercise of its putative decision-making powers. As will already be apparent, I disagree with HTV on those matters. I will return to them in due course.

324 During the first morning of the oral hearing, Mr Goubran KC began to make some sharp, direct attacks on the proposition that landholders can legitimately bring test or token applications.

325 For example, during that morning, after I put to Mr Goubran KC that the cases (meaning, principally, Day) seemed to indicate that permit applicants could argue against themselves,[592] Mr Goubran KC replied that the statutory scheme 'does not provide for concocted applications where a claimant knows that they do not wish to develop land or have conditions within the land, and still proceed with it for the purposes of creating a trigger for compensation'.[593] However, shortly thereafter, Mr Goubran KC accepted that HTV had not previously, in any of its written submissions, raised the propriety of the making by landholders of applications of the kind in question; or any issue as to whether it is open to a landholder to proceed as Mr Kilpatrick had proceeded.[594] I asked Mr Goubran KC whether HTV now wished to argue that landholders cannot proceed in this way.[595] Initially, Mr Goubran KC said 'no'. Then he said that he would wish to reflect on this and to obtain instructions, and he expressly acknowledged that the bona fides of Mr Kilpatrick's applications was not a matter raised in the notice of appeal.[596] I granted Mr Goubran KC time to reflect on this matter and to obtain instructions.[597]

326 A little later in the morning, Mr Goubran KC observed that if, at VCAT, a statutory authority indicates that it will 'reluctantly accept' that permit conditions which it had mandated should be removed, then that would usually result in a consent decision by VCAT.[598] I responded by referring to the apparent existence for some 30 years or more (at least since Day) of an accepted practice of token or test applications, where the position would surely be very different. Notwithstanding that he had not yet received any instructions on this point, Mr Goubran KC replied that the statutory regime did not draw distinctions between applications for the purpose of triggering claims and other applications.[599]

327 Likewise, Mr Goubran KC went on to tell me that he was going to spend some time seeking to persuade me that there was something wrong with people making applications that they did not want to win.[600] He then retreated and acknowledged (again) that he would need instructions before he could embark on such a course.[601] But within minutes Mr Goubran KC was submitting that, at VCAT, HTV had 'put up a white flag',[602] and had offered to give Mr Kilpatrick what he wanted - the removal of the conditions.[603]

328 When the Court resumed after the luncheon adjournment on the first day, Mr Goubran KC told me that he was about to move to proposed ground 2 of the proposed appeal. However, the following exchange then took place:[604]

HIS HONOUR: Yes. Just before you get to that, did you get any instructions about your fundamental matter?

MR GOUBRAN: Yes. Well, I do not have any instructions to seek to amend the authority's amended notice of appeal. And so your Honour should determine the application before you based on the amended notice of appeal that's presently before you.

HIS HONOUR: And the submissions you've made so far and will make this afternoon.

MR GOUBRAN: Yes.

HIS HONOUR: Okay. Which does not include any suggestion that this conventional practice is not permitted under the legislation.

MR GOUBRAN: I do not make any submissions in respect of that matter, your Honour. And it's not a necessary feature of the appeal that my client is raising before you.

HIS HONOUR: Alright. I think I understand, yes. Alright.

MR GOUBRAN: It couldn't be clearer.

In my view, given what Mr Goubran KC had said before lunch as mentioned above, this exchange involved a (further) concession by HTV, at least for the purposes of the present case, that there is a conventional practice, permitted under the legislation, of test or token applications, being the practice that was followed by Mr Kilpatrick in this matter.

329 If it be legitimate for landholders to bring test or token applications for permits and to bring test or token applications to VCAT for the review of conditions,[605] then, in my opinion, as mentioned several times above,[606] most, if not all, of HTV's arguments are fatally undermined. And it seems to me that Mr Goubran KC, too, was painfully aware of the difficulties for his case of accepting the proposition that test or token applications are legitimate. Such awareness would explain, perhaps, the several abovementioned attacks that Mr Goubran KC had made on that proposition prior to his reluctant (effective) acceptance of it, and the same might also explain the fact that, even after (effectively) accepting the proposition, Mr Goubran KC continued to take swipes at it.

330 So, on that same afternoon, just after professing that he was not saying that a person could not bring a 'conditions appeal' to VCAT hoping to lose for compensation reasons,[607] Mr Goubran KC submitted that where a VCAT applicant has referred to the conditions as being 'not acceptable',[608] VCAT should take the applicant 'at their word' and should proceed on the basis that the applicant's (real) position is that the conditions should be removed.[609] Similarly, near the end of the first afternoon, Mr Goubran KC accused Mr Kilpatrick of having used the VCAT proceedings as a 'device' to seek to overcome the fact that the Council had 'failed to refuse' his permit applications. Of course, these submissions were the antithesis of HTV's several concessions that test or token applications to VCAT are legitimate.

331 On the second day of the hearing, Mr Goubran KC told me from time to time, in effect, that HTV was not to be taken to be accepting that the test or token approach represented a practice at all, or that it represented a long established practice, or that the related understanding of the legislation was conventional. Thus, when I said to Mr Goubran KC words to the effect that HTV did not challenge the '30 year practice',[610] Mr Goubran KC replied that I had mentioned that 'practice' a number of times, and he then said: 'I don't know what that 30 year practice is. It wasn't a feature of the reasons for judgment. I don't propose to respond to it, Your Honour'.[611] Then, when I suggested to Mr Goubran KC that Mr Kilpatrick had applied for the permits 'to test the situation as everyone understood',[612] Mr Goubran KC replied, somewhat remarkably: 'I don't understand what Your Honour means by "test the situation"'.[613] Shortly thereafter, Mr Goubran KC denied a suggestion I had made that this was not an ordinary VCAT review. Mr Goubran KC submitted that, rather, this was an ordinary VCAT review, and that every application for review of a Council decision should be conducted and considered in a standard fashion.[614] Later, Mr Goubran KC told me (again) that HTV did not accept that the practice exists; that HTV denied that the existence of any such practice was relevant to the 'proper construction' of the statutory regime; that there was no reference to any such practice in VCAT's reasons; and that HTV's 'silence' did not mean that the adoption by a landholder of the test or token approach would not be challenged 'at some point'.[615] On the other hand, after I mentioned that, in Day, JD Phillips J did not say that this could not be done, Mr Goubran KC replied: 'And neither am I'.[616]

332 Both at VCAT and in this Court, HTV has been willing to wound but afraid to strike. HTV is bound, for all the purposes of the proposed appeal, by the way it ran its case at VCAT and by its decision in this Court not to seek leave to further amend its amended notice of appeal. It would be quite unjust to Mr Kilpatrick to deal with this proposed appeal otherwise than on the basis that, at VCAT, the parties' cases were framed, and the evidentiary material was adduced, in the context of a common awareness that Mr Kilpatrick had followed a test or token approach, and a common acceptance that such an approach was legitimate. The result was that the only real issue between the parties at VCAT was whether the residences should be allowed to be built on the reservation, i.e. whether the relevant conditions should 'stay or go'. And, as I have already indicated and will further explain, it is my view that HTV's claim in this Court that VCAT did not duly decide that issue is utterly hollow.

333 Early on the first hearing day, Mr Goubran KC foreshadowed making a submission that VCAT's finding that HTV lacked 'clean hands' in this matter was 'inappropriate and unfair to the Authority'.[617] He did not, at that early stage, give any particulars of such inappropriateness and unfairness. Nor did he indicate, at that stage, how such a submission would be covered by HTV's proposed grounds of appeal.

334 A little later that morning, I asked Mr Goubran KC whether his client was persisting with the claim in the amended notice of appeal for an order to substitute a decision in its favour for the decision made by VCAT. Mr Goubran KC told me that his client did, primarily, seek such an order, and that it did so on the basis of the material that was before the Tribunal.[618] That prompted me to refer to the fact that, until about two weeks before the VCAT hearing, HTV was calling for an opposite decision on the conditions in question; and that, with the benefit of all of the written material and submissions before it, VCAT found, rightly or wrongly, that the motive of HTV for changing its position, or purporting to change its position, was to avoid compensation; and that, effectively, VCAT found that HTV had not been acting genuinely or in good faith.[619] At that stage, Mr Goubran KC's only response was to say that his client did not accept that there was a connection between VCAT's finding in that regard and the disposition by VCAT of the applications for review.[620]

335 During the afternoon of the first hearing day, Mr Goubran KC was submitting to me that VCAT's proper role was to step into the Council's shoes and to decide afresh the matter of the future of the conditions in question, taking into account the up to date situation.[621] Subject to what I have said above regarding the absence of a legal obligation on VCAT to proceed always on a completely de novo basis and about the present parties being bound by the manner in which they conducted their cases at VCAT,[622] so much may be accepted. However, Mr Goubran KC then submitted that the prior position of HTV did not reduce the significance that VCAT was required to accord to HTV's ultimate (current) position. I indicated to Mr Goubran KC that I found this submission a difficult one, to say the least. I suggested to him that:

(a) HTV had at all times been an expert body;

(b) for a long period HTV had maintained that the proposed dwellings should not be allowed to be built on the reservation;

(c) HTV had changed its position at the last minute with no immediate explanation;

(d) at VCAT it was being suggested on behalf of Mr Kilpatrick, and by VCAT itself, that the last minute change was not genuine;[623] and

(e) nevertheless, HTV had called no witnesses and had adduced no evidentiary material on the point.

I then asked Mr Goubran KC why VCAT was not entitled, in those circumstances, to draw the inferences that it did draw and to give less weight than it might otherwise have given to HTV's ultimate (current) position.

336 In response, Mr Goubran KC became quite agitated and claimed that this view had not previously been expressed and, in particular, that Mr Kilpatrick had not included it in his written submissions. I then indicated to Mr Goubran KC that, in my provisional view, the point was evident within VCAT's reasons themselves.[624] Mr Goubran KC then said that he would 'look forward' to addressing me in written submissions in respect of the matter.[625] I then put to Mr Goubran KC a series of paragraphs in Mr Kilpatrick's written submissions where, as it then seemed to me (and as it still seems to me), much the same defence of VCAT's reasoning had in fact been advanced.[626] Mr Goubran KC refused to accept this. He confirmed that HTV would wish to file written submissions on the point.[627]

337 Soon after, Mr Goubran KC purported to attack, more directly, the availability, as distinct from the relevance, of VCAT's finding that HTV lacked 'clean hands' in this matter. I will give more detail about Mr Goubran KC's submissions in this regard in a moment. However, I note that HTV had not, in any of its written submissions, foreshadowed any such attack. That is not surprising, because the same would have been beyond the scope of the grounds pleaded in the amended notice of appeal. The only ground pertaining expressly to VCAT's finding that HTV lacked 'clean hands' is ground 3(d), which is confined to the alleged irrelevance of the finding. Mr Goubran KC did not raise the prospect of applying for leave to amend in this respect.

338 Mr Goubran KC submitted that VCAT had been wrong to 'impugn HTV's motives'.[628] He said that this was 'reflected in the reasons for decision'.[629] Mr Goubran KC continued:[630]

We take great issue with that, your Honour. We take great issue with it, because, your Honour, we say that there isn't a basis for that aspect of the findings.

Then, for several minutes,[631] Mr Goubran KC tried to make out a case that HTV had not been wrongly acting in its own financial interests but rather had been acting benevolently towards Mr Kilpatrick by changing its position. In particular, Mr Goubran KC referred to HTV's offer to remove the abovementioned 'no compensation' condition (while at the same time offering to remove the two relocation conditions). Earlier in his oral submissions,[632] Mr Goubran KC had hinted at this argument by referring to the existence of the 'no compensation' condition as an 'important point'.

339 However, this was a completely new point. It had not been raised at VCAT, despite all the attacks on HTV's financial motives that had been launched by Mr Morris QC and despite VCAT's obvious interest in that matter. If the point had had merit, it would surely have been raised at VCAT. It might have been a complete answer to Mr Kilpatrick's case. Yet at VCAT there was no hint of it in submissions, much less any evidentiary material about it. Had it been raised, Mr Kilpatrick might have been able to meet it, by evidentiary material or by submissions or by both. When Mr Goubran KC purported to raise the point before me, I put to him that it would have been a matter for VCAT to assess.[633] I also put to him that, so far as relevant, the 'no compensation' condition was to the effect that there could be no compensation for anything done under the permit; that the only thing of significance that was to be done under the permit was the building of the proposed dwelling (in each case); that, therefore, any reinstatement of a right to compensation would be limited to compensation for demolition of the dwellings; and that this analysis was supported by clause 45-01(4) of the decision guidelines of PAO-5.[634] Mr Goubran KC did not accept the analysis. However, his attempt to explain his response was unpersuasive.[635] Among other things, Mr Goubran KC claimed that Mr Kilpatrick has at all times been 'shooting himself in the foot'.[636] That seems monumentally unlikely. Further, I note that the relocation conditions required that the dwellings be built away from the reservation for PAO5. Hence, even if the dwellings had actually come to be built (under the existing permit conditions), they would never have needed to be demolished in order to make way for the proposed transport infrastructure. Further, as everyone knew, Mr Kilpatrick had no intention of actually building the dwellings at all. Hence, there was never any prospect at all of Mr Kilpatrick (or any purchaser from Mr Kilpatrick) receiving compensation in respect of the building of the dwellings. It seems to follow that the proposed removal of the 'no compensation' condition was of no financial benefit to Mr Kilpatrick and was of no financial detriment to HTV.[637]

340 In any event, even if there had been merit in the point, it was not a point of law, as distinct from a point of fact. Nor would it be covered by any of HTV's proposed grounds of appeal. Further, I note that if HTV really does not stand to gain financially from success in the present proceeding, it may not have standing to bring it.[638]

341 In the end, I need not, and do not, express a concluded view as to the effect that the removal of the 'no compensation' condition might have had on Mr Kilpatrick's situation. The fact is that HTV simply cannot rely on this point now when it did not do so at VCAT, and when it has not sought leave to further amend its amended notice of appeal so as to raise it.[639]

342 HTV has no basis for attacking VCAT's finding that HTV lacked clean hands.

Whether VCAT's order was in accordance with its statutory powers and duties: HTV's new cases and some related, contrasting cases

343 In his oral submissions, especially in his re-focussed address on the second hearing day, Mr Goubran KC concentrated on alleged indications that VCAT had interpreted s 99(a)(iii)(B) of the PEA as conferring on it a 'stand-alone' jurisdiction or power to make orders relating to compensation for planning blight. He submitted several times that VCAT went 'straight' to s 99. He accused VCAT of ignoring ss 84B and 85 of the PEA; of wrongly omitting to conduct a de novo review of the conditions in question; and of failing to decide whether the conditions should stay or go.

344 Of course, these contentions had also been included in HTV's written submissions (in one form or another),[640] and I have already commented on them extensively.[641] However, as mentioned above, at the oral hearing Mr Goubran KC attempted to support these contentions by handing up copies of several cases that HTV had not previously cited, and taking me through them. The 'new' cases were divided into two batches. Initially, each batch was to be comprised of three new cases. Later, Mr Goubran KC also made reference to a fourth new case[642] that was related to one of the three cases in the first batch.[643] From the cases in the first batch,[644] Mr Goubran KC sought to draw the general proposition that it is incumbent on VCAT to be clear about what it is doing when expressing its formal orders; and the consequential general proposition that this Court should not give VCAT too much latitude in that regard.[645] From the cases in the second batch,[646] Mr Goubran KC sought to draw the general proposition that VCAT is a body of limited statutory jurisdiction, with limited statutory powers, and that its jurisdiction and powers did not extend to the making of the order that VCAT made in the present case.[647] From the new cases in both batches, Mr Goubran KC sought to derive support for the general proposition that, in a case like the present, VCAT should confine itself, in both its reasoning and in the content of its formal orders, to matters referred to in Part 4 of the PEA, as distinct from matters referred to in Part 5 thereof (such as, in particular, matters referred to in s 99(a)(iii)(B)).

345 The first new case cited by Mr Goubran KC was a decision of VCAT (constituted by Senior Member Byard) given in 2008, namely Murone v Macedon Ranges Shire Council ('Murone').[648] That decision involved the re-determination, on remittal from this Court, of two related VCAT proceedings. The VCAT proceedings had been decided initially in August 2004. There was then an appeal to this Court under s 148 of the VCAT Act. In December 2004, Osborn J (as Osborn JA then was) allowed the appeal and remitted the proceedings to be heard and determined again by the Tribunal differently constituted. There was then a delay of some years while other cases of a precedential nature were heard and decided. Mr Goubran KC took me to passages in Senior Member Byard's 2008 decision which sought to describe errors in VCAT's 2004 decision. Mr Goubran KC exhorted me to adopt and apply certain remarks made by Senior Member Byard in that regard, to which I will shortly come.

346 In my view, Murone is plainly distinguishable, and does not assist HTV in the present case. Quite the opposite. To explain why, more background to Murone is needed. In 2004, the applicants in Murone proposed to subdivide certain land. They applied to the responsible authority, Macedon Ranges Shire Council ('MRSC'), for a permit. The relevant planning scheme under the PEA required that any subdivision be in accordance with a development plan approved by the responsible authority. A development plan had been proposed by the applicants, but MRSC had not yet approved it. For that reason, MRSC had not yet made a decision on the applicants' permit application. The applicants then made two applications to VCAT - first, an application under s 149 of the PEA for review of MRSC's alleged failure to make a decision on the development plan within a reasonable time; and, second, an application under s 79 of the PEA for review of MRSC's alleged failure to make a decision on the application for the subdivision permit within the prescribed time. In August 2004, VCAT published a single decision covering both applications for review. VCAT's reasons indicated that it agreed with the applicants' position generally, except that VCAT considered that some minor amendments to the development plan were required. However, in the s 149 proceeding (the development plan proceeding), VCAT did not make an order imposing a state of satisfaction on the responsible authority. Indeed, VCAT made no order at all in the s 149 proceeding. Further, VCAT did not specify the actual amendments that would be called for to make the development plan satisfactory. In the s 79 (subdivision permit) proceeding, VCAT simply made an order granting the subdivision sought, subject to 11 conditions.

347 Before me, Mr Goubran KC relied in particular on the following two paragraphs of Senior Member Byard's 2008 decision in Murone:[649]

1. It might be thought that the Tribunal must have intended to make an order in favour of the applicants in relation to the development plan review. It was aware that such a plan was a pre-requisite for the permit it purported to grant. It should have made an order specifically dealing with the plan. It may be the failure to do so was an oversight, or it may be that the Tribunal thought it was implicit in granting the permit that the pre-requisite was also granted.
2. That is not really satisfactory. Section 116(1)(a) of the [VCAT Act] provides that an order of the Tribunal must be in writing. To be specifically stated in writing is something different to leaving an order [to] be derived by inference, even a necessary inference. Inference could not suffice in this case in any event. The minor amendments to the development plan contemplated in the reasons given by the Tribunal needed specification.

348 Immediately after those paragraphs of Murone, Senior Member Byard referred to the judgment of Osborn J that had set aside VCAT's 2004 decision and had remitted the proceedings for further hearing and determination. I asked Mr Goubran KC whether the same criticism had been made by Justice Osborn. Mr Goubran KC offered to check this. Later, after the luncheon adjournment, Mr Goubran KC supplied me with a copy of the judgment of Osborn J and took me to several paragraphs of it.[650] Of those paragraphs, it seems to me that the following are the most relevant for present purposes (my emphasis):[651]

1. The critical question in the present case is simply whether the Tribunal's reasons demonstrate that it concluded a development plan had been prepared to its satisfaction. If it did so conclude then the initial requirement of cl 43.04-1 of the Planning Scheme was in substance met.
2. In my view it is plain from paragraph 10 of the reasons which I have quoted above that the Tribunal considered the plan before it when viewed as a development plan was substantially but not entirely satisfactory.

...

1. As I have said the Tribunal's reasons expressly state that the requirements for the development plan could be met by amendments to it. When this conclusion is read in conjunction with the permit conditions, it is in my view apparent that the Tribunal has sought to achieve such amendments by way of permit condition.

2. There is an obvious difficulty with this approach. The Development Plan Overlay requires that a development plan be prepared to the satisfaction of the Responsible Authority as a precondition to the grant of a permit. No such satisfactory plan existed at the time of the Tribunal's decision to grant a permit.

...

1. There is also some force in Mr Peake's submission that the Tribunal's error is demonstrated by its very failure to make any order with respect to the development plan. This is not a case of the sort considered by Balmford J in Moonee Valley City Council v Quadry Industries Pty Ltd & Ors.[652] In that case the Court found that the words used in determining an appeal were clear in their intention despite their failure to adopt the language of the statute. In the present case no words were used to determine the s 149 application. The Tribunal did not purport to dispose of the s 149 matter and its failure to do so further confirms that it did not reach a state of final satisfaction [with respect to] the form of development plan before it.

349 As Osborn J made clear in those paragraphs, VCAT had made several clear errors of law in arriving at its 2004 decision in Murone. VCAT had not reached the necessary state of satisfaction about the content of the development plan. Hence VCAT could not, and did not, direct the Council to reach that necessary state of satisfaction. Thus VCAT made no order at all disposing of the s 149 application. The opposite is the case here. In the present case, VCAT (after considering the issues that had been litigated before it) was plainly satisfied that the conditions in question should stay in place. And VCAT sought to give effect to that state of satisfaction by making an (actual) order in each proceeding that the application for review be disallowed on the public purpose ground. In doing so, VCAT took its cue from s 99(a)(iii)(B). As I will further explain in due course - including by reference to Day - there was no error in that. Nothing said in Murone, either by Osborn J or, for that matter, by Senior Member Byard, points to a different conclusion in the present case.

350 Indeed, that view is reinforced by a decision of Balmford J that Osborn J referred to, with apparent approval, in [37] of his judgment in Murone, namely Moonee Valley City Council v Quadry Industries Pty Ltd & Ors ('Quadry'),[653] a decision that had been given in 1999.[654] Mr Goubran KC did not take me separately to Quadry. In Quadry, a planning matter had been pending in the Administrative Appeals Tribunal of Victoria ('the AAT'), which was the forerunner of VCAT's review jurisdiction.[655] The pending planning matter was 'called in' by the Minister pursuant to s 41 of the Planning Appeals Act 1980. As a result, the planning matter was ultimately decided by way of a 'determination' made by the Governor in Council. Parties to the original Tribunal proceeding had a right of appeal to this Court - under a provision of the Administrative Appeals Tribunal Act 1984 corresponding with the present s 148 of the VCAT Act - against the decision of the Governor in Council. Moonee Valley City Council ('MVCC'), being such a party, brought an appeal. Balmford J held, among other things, that the applicable principles of law were to be found in the decided cases relating to appeals on a question of law from the Administrative Appeals Tribunal. Much the same principles now apply to appeals under s 148 of the VCAT Act.[656]

351 Pertinently for the present case, one of the grounds of appeal in Quadry related to an alleged failure by the Governor in Council to follow the requirements of s 85(1)(b) of the PEA. That provision was in substantially the same form in 1999 as it is now. It read:

(1) After hearing an appeal, [the AAT] may-

(b) in the case of an appeal against a refusal or failure to grant or a decision to grant a permit-

(i) grant the permit and direct the responsible authority to issue it; or

(ii) grant the permit, direct that the permit must or must not contain any specified conditions and direct the responsible authority to issue the permit.

In Quadry, MVCC submitted that, contrary to s 85(1)(b), the text of the Governor in Council's determination did not include the formal grant of the permit in question, and that the decision was accordingly invalid, and should be set aside and the matter remitted to VCAT (as successor of the AAT) to be decided again. Balmford J rejected this ground of appeal. She did so in terms that assist Mr Kilpatrick, not HTV. Her Honour said (my emphasis):[657]

1. I do not accept that submission. The Governor in Council was dealing with an appeal against the refusal of a permit. The words used in determining that appeal, 'the Governor in Council hereby determines the appeal by allowing Appeal No 1996/040767', are apt to convey the intention of the determining body to grant the permit. Were that determining body an administrative tribunal of the kind whose decisions are considered in the authorities extracted in paragraphs 36 and 37 above, a court would not hesitate to find that the intention to grant the permit was conveyed by those words, and was effective. While it may be argued... that the Governor in Council, supported by the resources of the Minister and the Minister's department, should be judged more strictly than such a tribunal, that is not a proposition that I would accept. Any administrative tribunal, like any court, or any person drafting documents intended to have legal effect, is well advised to adopt strictly, where relevant, the language of any enactment under which it is intended to operate. However, in this case, where the intention of the decision-maker is clear, I find that the failure, in this one respect, to adopt the language of the statute, does not invalidate the decision. This ground of appeal accordingly fails.

352 It is useful to quote, also, paragraphs 36 and 37 of Quadry, being the paragraphs referred to in the passage set out immediately above:

1. It is not in issue that failure by an administrative tribunal to consider relevant matters can constitute a vitiating error of law. Whether such a vitiating error has occurred will always turn on the circumstances of the particular case, including the legislative requirements imposed on the tribunal in question. In Kentucky Fried Chicken Pty Ltd v Gantidis [1979] HCA 20; (1979) 140 CLR 675, Barwick CJ said at 679-680:

Of course, if it is shown that a Tribunal such as the present, in making an order within its competence, has failed to take into account relevant matters, its determination can be reviewed, as in this case, upon an order to review. So much is a settled facet of the relevant jurisprudence. But that course cannot be taken unless it clearly appears that there has been a material error of that kind. Whether or not it has occurred is a matter of fact and not of surmise. Failure in expressing reasons for decision is a very unsure guide to the resolution of such a fact, though in some cases it may be indicative. But in any case, such a failure to advert to some material circumstance, if it exists, must be weighed in the light of all the circumstances of the proceedings including the nature and extent of the charter of the Tribunal.

That question is further discussed by Ormiston J in Body Corporate Strata Plan No 416 & Ors v Stirling Properties Ltd (No.2) [1984] VicRp 73; [1984] VR 903 at 913-4.

1. In Michaelis Bayley (Vic) Pty Ltd v Melbourne & Metropolitan Board of Works & Ors (1980) 44 LGRA 65, Fullagar J, after referring to Kentucky Fried Chicken and other authorities, said at 67:

...The cases show, as one would expect, that decisions of [the Town Planning Appeals Tribunal] are not to be set aside by over-legalistic analysis of reasons stated or by over-zealous drawing of inferences from things not stated.

I note that what Balmford J said in those respects, as apparently approved by Osborn J in Murone, is fully consistent with more recent authority as discussed in [18] to [34] above of this judgment. In my view, the facts of the present case are far closer to the facts of Quadry than they are to the facts of Murone. Correspondingly, in my view, the observations made by Balmford J in Quadry are more relevant to the present case than the observations made by Senior Member Byard in Murone.

353 Further, the observations of Senior Member Byard in Murone do not assist HTV in any event. Mr Goubran KC said[658] that Senior Member Byard had deprecated leaving an order to be derived by inference, even a necessary inference, and that the Senior Member had said that inference could not suffice in any event. However, Senior Member Byard was referring only to inferences as to the content of an order, not inferences as to the reasons for a decision. Moreover, insofar as the Senior Member said that 'inference could not suffice', he was expressly confining his remarks to what had in fact happened, and not happened, in Murone.[659] In that case, VCAT had made no order at all in the s 149 (development plan) proceeding and had made an order that was not legally open to it in the s 79 (subdivision permit) proceeding. By contrast, in the present case, there is no need for this Court to draw any inferences at all in order to discern the content of VCAT's order. VCAT's order expressly 'disallowed' each application for review, on the public purpose ground. There was no ambiguity in that. There was no gap. Nor was there any evident failure to comply with any statutory requirement.

354 After Mr Goubran KC finished referring to the judgment of Osborn J in Murone, I drew his attention to the abovementioned provisions of s 117(6) of the VCAT Act, to the effect that the reasons of VCAT for an order, whether oral or written, form part of the order.[660] Section 117(6) throws doubt on Senior Member Byard's abovementioned observation in Murone to the effect that an order of VCAT needs to be 'specifically stated in writing'. In this regard, Mr Goubran KC submitted that VCAT's reasons in the present case do not provide for any order of the kind that would be necessary, under s 85 of the PEA or s 51 of the VCAT Act, to dispose of the proceedings for review.[661] However, it is obvious in the present case that, whatever VCAT's reasons may or may not have added to VCAT's order for the purposes of s 117(6), the formal order actually made by VCAT, in itself, fully disposed of the proceedings before it. Moreover, that formal order did so by providing, in relation to each proceeding, that the relevant application for review be disallowed on the public purpose ground. It was not necessary for VCAT to use the language of s 85 of the PEA or the language of s 51 of the VCAT Act in its formal order. Indeed, it would be an extraordinary thing to hold that, in disposing of an application for review of permit conditions, VCAT does not have the power to use, in its formal order, the very language that is used in s 99(a)(iii)(B) of the PEA in relation to the disposal of just such an application.

355 I return to the Tuesday morning of the oral hearing in the present case. After dealing with the 2008 VCAT decision in Murone, Mr Goubran KC went next[662] to Rumpf.[663] This was another judgment of Balmford J. It was given in 2000. I have already mentioned it in relation to the breadth of VCAT's powers to resolve disputes in planning matters.[664]

356 In Rumpf, VCAT had heard an application, made under s 82 of the PEA, for review of a decision made by the Mornington Peninsula Shire Council to grant a planning permit for a coastal development. The VCAT applicants had been objectors to the grant of the permit. VCAT ruled against them, except that it imposed a new condition on the permit. One of the objectors/applicants, Mr Rumpf, appealed to this Court under s 148 of the VCAT Act. Balmford J held that VCAT's decision was invalid because VCAT had not been properly constituted to decide a certain question of law involved in the objectors' application for review. Her Honour determined that VCAT's decision should be set aside accordingly. After so ruling, her Honour made certain obiter remarks about the form of the order that VCAT had made. Mr Goubran KC relied on those remarks before me. He sought to derive from her Honour's remarks the proposition that, whilst latitude may well be given in respect of words used by VCAT in reasons for decision, the words used in an order made by VCAT are a different matter.[665] Subject to the abovementioned provisions of s 117(6) of the VCAT Act, it may be accepted that her Honour's remarks give some support to that proposition. However, as mentioned above, there is nothing wrong with the form of the order that VCAT made in the present case. Nevertheless, it is worth quoting the remarks made by Balmford J in Rumpf about the form of the Tribunal's order (i.e. the remarks on which Mr Goubran KC relied). They are not inconsistent with what her Honour had said in Quadry as indicated above. Indeed, once again, it seems to me that her Honour's remarks in Rumpf assist Mr Kilpatrick's case and do not assist HTV's case. So far as relevant, Balmford J said (my emphasis):[666]

The form of the order of the tribunal

1. There is one other matter to which I should refer. Two aspects of the order of the tribunal in my view call for comment. By virtue of ss 42(1) and 51(1) of the VCAT Act and s 82 of the [PEA], the jurisdiction of the tribunal in this matter derives from a combination of the provisions of those two Acts. In formulating its order, the tribunal wisely was concerned to comply with both s 85(1) of the [PEA] and s 51(2) of the VCAT Act, two provisions which do not necessarily sit easily together...

2. The first matter which causes me concern is the opening passage of the order reading "The Application for Review is disallowed". The word "disallowed" is presumably intended as a variation on "dismissed". I can find no basis for that statement in the provisions of either Act and counsel were unable to direct me to any statutory provision justifying its inclusion in the decision. Its effect is confusing to the reader. It is not necessary to the Tribunal's order.

3. Next, the tribunal states that "the decision of the Responsible Authority is affirmed". This statement is prima facie an exercise of the power conferred upon it by s 51(2)(a) of the VCAT Act. However, it is apparent from the second part of the order that what the tribunal has done, by adding a new condition to the permit, is not to affirm the decision of the responsible authority, but in fact to vary that decision, as it was entitled to do by virtue of both s 51(2)(b) of the VCAT Act and s 85(1)(b)(ii) of the [PEA]. My concern here is not with what has been done, but with the formal expression of what has been done. The only error is the use of the word "affirmed" rather than the word "varied". Again, the effect is confusing.

131 Thus in my view the first sentence of the order should read simply:

The decision of the responsible authority is varied as set out below.

1. Ultimately, the intention of the tribunal in formulating its order is clear, and I do not see either of these matters, in this case, as affecting the validity of the order. However, on another occasion, that might not be so. I would refer to the discussion of a related, but different, formulation of an order by the Administrative Appeals Tribunal in Transport Accident Commission v Dohnal.[667] As I there said, there is well-known authority that an appellate court should not construe the words used in reasons for decision of an administrative tribunal "minutely and finely and with an eye keenly attuned to the perception of error": (per Lockhart J in Politis v Federal Commissioner of Taxation[668] and see the passage cited from Michaelis Bayley in [14] above. However, the formal order of an administrative tribunal is a different matter. If care is not taken to ensure that the formal order is so expressed as to be a proper exercise of the statutory power conferred on the tribunal in question, there is always a danger that the tribunal will fall into error of a more fundamental kind.

357 Paragraph [128] of Rumpf is consistent with my view that, in the present case, VCAT's jurisdiction derived from the combined operation of the VCAT Act and the PEA, and that VCAT's relevant powers also derived principally from the combined operation of those two Acts. By contrast, HTV has denied, on some occasions, that VCAT's relevant powers in the present case included the powers referred to in the VCAT Act. Thus, in its outline, in relation to proposed Ground 1, having contended (correctly) that VCAT's relevant jurisdiction was review jurisdiction only, HTV said: [669]

The powers conferred on [VCAT] in the exercise of that jurisdiction were those set out in, relevantly, s 85 of the PEA.

This submission allowed no room for VCAT to have or to exercise any functions or powers under s 51 of the VCAT Act or under any other provision of the VCAT Act, or to have or to exercise any implied or incidental powers. The submission was thus plainly wrong. Moreover, quite inconsistently with that submission, HTV proceeded in its outline to contend,[670] in relation to proposed ground 2, that s 51 of the VCAT Act had been applicable to VCAT in this matter, and that s 51 had obliged VCAT to carry out a de novo review.[671] HTV's submissions on s 51 of the VCAT Act became all the more bewildering at the oral hearing. Mr Goubran KC submitted several times, most notably at the very end, that s 51 had required VCAT to carry out a de novo review.[672] But, at other times during the oral hearing, Mr Goubran KC submitted that resort could not be had to s 51 of the VCAT Act to support VCAT's order. For that proposition, he relied principally on the fact that VCAT did not expressly mention s 51 and the fact that VCAT did not say in terms that it was affirming the Council's decision to impose the conditions in question or otherwise use the language of s 51.[673] Of course, Mr Goubran KC's reliance on those particular features of VCAT's reasons and order must confront the abovementioned 'mistaken source of power' principle. At a fairly late stage of his address - relying in part on his second batch of new cases - Mr Goubran KC made yet another (more limited) submission about s 51 of the VCAT Act. He submitted that, in any event, s 51 did not, either by itself or in combination with the provisions of the PEA, authorise VCAT, in a case like the present, to consider whether the land in question was required for a public purpose.[674] Matters to which I have already referred,[675] and related matters to which I will in due course refer,[676] show that that particular submission was plainly wrong. VCAT was clearly entitled to consider whether the land in question was required for a public purpose. More generally, I consider that s 51 of the VCAT Act did apply, and that it did confer relevant powers on VCAT in this matter.

358 In paragraph [129] of Rumpf, Balmford J treated 'disallow' and 'dismiss' as synonyms for present purposes. JD Phillips J had done the same in Day.[677] Balmford J did not say, in paragraph [129] of Rumpf, that the word 'disallowed' would necessarily be inappropriate in an order or decision of VCAT. Rather, her Honour said that she could find no basis for that word being included in the decision actually made in Rumpf. Presumably, that was because Mr Rumpf had had a (small) measure of success at VCAT, in that a new condition was imposed. Thus VCAT was really allowing Mr Rumpf's application - VCAT was, in effect, varying the decision of the primary administrator to the extent necessary to impose the new condition - rather than disallowing it. Further, it may be that her Honour's attention was not drawn to the existence of the word 'disallows' in s 99(a)(iii) of the PEA itself; or else that her Honour regarded applications for review under s 79 or s 80 of the PEA (of the kind referred to in s 99(a)(iii) thereof) as being relevantly different from objectors' applications for review under s 82 of the PEA. In any event, in my view, it is quite clear that VCAT can use the word 'disallow' and cognate expressions in disposing of applications of the kind referred to in s 99(a)(iii) of the PEA, including applications for review under s 80 of the PEA.

359 Paragraph [132] of Rumpf is fully consistent with Quadry in that, once again, her Honour expresses the view that, where the intention of the Tribunal in formulating its order is clear, errors of the kind identified in Rumpf do not affect the validity of the order. As her Honour says, a different kind of error in a different kind of case might lead to a different conclusion. But that was not the position in Rumpf, and it is not the position in the present case.

360 It will be seen that, in paragraph [132] of Rumpf, Balmford J refers to her own previous decision in Transport Accident Commission v Dohnal ('Dohnal').[678] Mr Goubran KC took me to Dohnal next.[679]

361 In Dohnal, the AAT had concluded that a matter should be remitted to the original decision-maker. In its formal decision, the AAT had said that the matter was remitted 'for reconsideration... in accordance with the findings made herein...' There was an appeal on a question of law to this Court. Balmford J found that the AAT's decision could not stand because of a fraud committed by one of the parties at the AAT. In addition, Balmford J suggested, in obiter remarks, that the wording of the AAT's decision was ambiguous as to whether (for the purposes of s 25(2)(c)(ii) of the Administrative Appeals Tribunal Act 1984 (Vic) as then in force) it involved a direction, or merely a recommendation, to the original decision-maker. Her Honour noted that there was authority that an appellate court should not construe the words used in the reasons for decision of an administrative tribunal minutely and finely and with an eye keenly attuned to the perception of error.[680] Her Honour continued:[681]

However, the decision itself, as opposed to the reasons therefore, must be so expressed as to be a proper exercise of the statutory power conferred on the Tribunal.

362 Before me, Mr Goubran KC relied on Dohnal for 'the emphasis placed on precision in orders'.[682] However, in my view, as already mentioned, VCAT's order in the present case was unambiguous. It did not lack precision at all.

363 I turn now to the second batch of 'new' cases cited by Mr Goubran KC. The first of these was Director of Housing v Sudi ('Sudi'),[683] a judgment of the Court of Appeal delivered in 2011.

364 Sudi is a leading case on the jurisdiction and powers of VCAT. I have already referred to it in the early part of this judgment in dealing with VCAT generally.[684]

365 The ratio decidendi of Sudi is that VCAT does not have power to examine the legal validity of a decision by a government agency to institute a proceeding in VCAT's original jurisdiction.[685]

366 That ratio has no direct application here. In the present case, the proceedings before VCAT lay in its review jurisdiction, not in its original jurisdiction. And, of course, it is not suggested that VCAT purported to examine the legal validity of the decision of Mr Kilpatrick to institute the proceedings.

367 However, Mr Goubran KC relied on the general tenor of, and certain passages in,[686] the judgments in Sudi in purported support of HTV's contention that VCAT strayed beyond its jurisdiction and powers in the present case.

368 Mr Goubran KC referred mainly to paragraphs [18]-[21] of the judgment of Warren CJ. In paragraph [18] the Chief Justice mentioned that, in Kirk v Industrial Relations Commission,[687] the High Court had recognised the 'special supervisory role' of State Supreme Courts in relation to exercises of executive and judicial power. Warren CJ continued:[688]

1. In contrast, the role and jurisdiction of VCAT is quite different. As an administrative tribunal, the jurisdiction of VCAT derives entirely from statute. The powers of an administrative tribunal in any particular instance flow from the statute that establishes the tribunal, in this case the VCAT Act, and any subject-specific legislation granting further jurisdiction, in this instance, the RTA.[689] VCAT is intended to be a forum for speedy and inexpensive resolution of specific kinds of disputes in respect of which the legislature saw fit to confer jurisdiction.
2. Given these fundamental differences, if Parliament had intended to confer on VCAT the power to carry out judicial review of administrative decisions, it would have done so expressly, or at least by clear implication. No such express provision can be found, or clear implication discerned, in the VCAT Act, the RTA, or the Charter.[690]
3. Accordingly, the learned judge was right to hold that VCAT "does not possess a judicial review jurisdiction" in its original jurisdiction.

Mr Goubran KC highlighted[691] the use by Warren CJ of the expression 'clear implication' in [20] above of Sudi. Thus he appeared to submit that, to the extent, if at all, a power of VCAT may be conferred by implication, the implication must be 'clear'. But that is not what Warren CJ held. Her Honour was not speaking generally, but rather was referring to the particular implication for which the respondent in Sudi was contending. In any event, Mr Goubran KC submitted that I should not find any implication here (clear or otherwise) that VCAT had power to make an order of the kind that it made. I disagree. In my view, s 99(a)(iii)(B) of the PEA implies with irresistible clarity that the powers of VCAT in dealing with an application for review of planning conditions extend to the power to disallow the application on the public purpose ground. The position was quite different in Sudi. The question there was as to the extent of the powers available to VCAT in the exercise of its original jurisdiction, as distinct from the powers available to it in the exercise of its review jurisdiction. In cases where VCAT has review jurisdiction, it may consider for itself the relevant facts, the relevant law and the proper exercise of any available discretion.[692] Moreover, in Sudi, the statutory implication for which the respondent unsuccessfully contended would have been a very large one indeed. Thus, in one of the paragraphs of the judgment of Weinberg JA relied upon by Mr Goubran KC, namely [284], his Honour had said:[693]

VCAT's jurisdiction is extremely broad. Nonetheless, its powers are confined to those conferred upon it by statute, either expressly or by implication. There is nothing in the VCAT Act, or the RTA, or the Charter itself, that suggests that VCAT has the power to engage in broad-ranging collateral review on Charter grounds.

The very paragraphs of Sudi on which Mr Goubran KC relies (including the paragraphs set out above) confirm that, unsurprisingly, the powers of VCAT (both in its original jurisdiction and, even more so, in its review jurisdiction) may be conferred, at least in part, by implication. Whether that has happened in any particular respect is to be determined as a matter of statutory construction.[694] As mentioned above,[695] the submission apparently made by HTV in its written reply, to the effect that VCAT has only the powers expressly conferred on it by governing legislation, is plainly wrong.

369 Mr Goubran KC referred me[696] to the observation of Warren CJ in [35] of Sudi to the effect that, if VCAT could entertain an attack on the validity of an administrative decision while dealing (in its original jurisdiction) with an application under the Residential Tenancies Act 1997 (Vic), then VCAT would have to, in effect, conduct a (complex, technical and time-consuming) trial within a trial. Her Honour saw this as incompatible with VCAT being a forum for the speedy and inexpensive resolution of tenancy disputes and outside the intention of the legislative scheme.[697] Mr Goubran KC submitted that I should see the present situation in the same way. I do not. The approach that was urged by Mr Kilpatrick and adopted by VCAT does not involve a trial within a trial (of any kind). Rather, VCAT simply reviews the decision under review. That is exactly what occurred in this case.

370 Mr Goubran KC also took me[698] to several paragraphs of the judgment of Weinberg JA, including, in particular, paragraph [284] (which is set out above). Having done so, he submitted that Sudi supports the view that VCAT has no power at all to make orders of the kind that it made in this case.[699] I discussed that submission at some length with Mr Goubran KC.[700] For the reasons already given,[701] I do not accept the submission. After the discussion, Mr Goubran KC advanced[702] the abovementioned,[703] slightly more limited proposition that VCAT was not authorised, by the PEA or by the VCAT Act or otherwise, to consider whether land is or may be required for a public purpose. He submitted that there is nothing in the legislation to suggest that VCAT is empowered in the exercise of its review jurisdiction to conduct a 'broad and general inquiry' into the public need for land.[704] I do not accept that submission either. The function in question is plainly not vested exclusively in referral authorities. The language of s 99(a)(iii)(B) itself demonstrates that. It expressly recognises that VCAT has a function of determining whether land is or may be required for a public purpose. The case law, and indeed HTV's own submissions to VCAT, are to the same effect.[705]

372 Next,[706] Mr Goubran KC took me to my own judgment in McKechnie.[707]

373 McKechnie is another case (in addition to Sudi) to which I referred in the early part of this judgment in dealing with VCAT generally.[708] McKechnie is also referred to above under the heading 'Distinguishing jurisdiction and power',[709] and again under the present heading.[710]

374 So far as presently relevant, in McKechnie I held that VCAT did not have jurisdiction to review a decision of a Victorian government agency not to process what the agency reasonably regarded as an invalid freedom of information request. In reasoning to that conclusion, I took the view that s 51 of the VCAT Act related only to the functions and powers possessed by VCAT in the exercise of its review jurisdiction, and that s 51 did not confer jurisdiction (properly so called) on VCAT.[711]

375 Mr Goubran KC referred me to paragraph [112] of McKechnie, in which I had set out matters of a background nature relating to VCAT. He then noted that, in the same paragraph, I had cited Dawson v Greyhound Racing Victoria ('Dawson')[712] (to which Mr Goubran KC would soon come) and that in paragraph [113] I had cited Sudi.[713] Mr Goubran KC then took me to paragraph [117] of McKechnie, in which I had referred to the close correspondence between s 51 of the VCAT Act and s 43 of the Administrative Appeals Tribunal Act 1975 (Cth), and in which I had quoted and applied the following passage from the judgment of the Full Court of the Federal Court in Lees v Comcare:[714]

it is to be noted that the powers of the AAT under s 43(1) of the AAT Act are powers '[f]or the purpose of reviewing' the reviewable decision, not powers that may be exercised at large.

376 Mr Goubran KC submitted[715] that this passage from Lees v Comcare supports the notion that VCAT does not have a 'stand-alone' power to make a declaration or order in respect of s 99 of the PEA. He submitted[716] that to conduct a 'separate' enquiry into whether land is or is not needed for a public purpose (within the meaning of s 99) would:

(a) be beyond what the PEA recognises;

(b) not be 'for the purpose of reviewing the reviewable decision'; and

(c) be contrary to the 'inexpensive and efficient objectives' of the VCAT Act.

377 However, in my view, as I have already indicated, what VCAT did in this case did not amount to the purported exercise of a 'stand-alone' power. VCAT did not engage in an inquiry that was 'separate' from the decision under review. Quite the opposite. The decision of the Council under review - the decision to impose the conditions in question - was a decision that had been necessitated by HTV's direction to the Council to impose those very conditions, a direction which in turn must have been based on HTV's view (as at the relevant time, at least) that the land was, or may be, required for the public purpose of the Transport Corridor. The question whether the land was, or may be, required for a public purpose was thus integral to the decision that the Council had made, and it was also integral to the decision that VCAT was called upon to make.

379 The last case in Mr Goubran KC's second batch of cases was Dawson.[717] In that case, T Forrest J (as T Forrest JA then was) held that VCAT had acted beyond power by amending the particulars of a charge in a greyhound racing disciplinary matter.

380 In Dawson, T Forrest J considered that light was thrown on the question whether VCAT had power to amend the charge by a series of Commonwealth cases which his Honour considered under the heading 'The Tribunal must address the same question'. Mr Goubran KC referred to the discussion by T Forrest J of two of those Commonwealth cases, namely Freeman v The Secretary, Department of Social Security ('Freeman')[718] (which was dealt with in [25] of Dawson) and Comcare v Burton ('Burton')[719] (which was dealt with in [29] of Dawson).

381 In Freeman, Davies J held that the question whether a decision to cancel the applicant's pension was correct was different from the question whether the applicant was now entitled to the pension. In Burton, Finn J held that it was not open to the AAT, in dealing with a review of a decision of Comcare concerning treatment of the worker, to entertain a new claim by the worker for permanent impairment. Finn J held that the Administrative Appeals Tribunal Act 1975 granted a power of review over a 'reviewable decision' only. In a passage that was cited by T Forrest J and read to me by Mr Goubran KC, Finn J said this:[720]

The process of reviewing that decision is to occur in the setting of the question[s] that gave rise to the decision. And while in that process the Tribunal can exercise its section 43(1) powers, it nonetheless is obliged to answer the same question[s] as was [were] before the reconsideration decision-maker.

382 Mr Goubran KC sought to translate the reasoning in Freeman and Burton (as applied in Dawson) to the present case.[721] He submitted that the process of review was to be done by VCAT in the setting of the question that gave rise to the original decision of the Council. He submitted that the decision of the Council was either to grant a permit, not grant a permit, or grant a permit with conditions. He said that VCAT's role was no greater than that. So, Mr Goubran KC submitted, VCAT was obliged on review to answer a simple question: should the permit be issued with conditions or without conditions?

383 In response, I suggested to Mr Goubran KC that the matter before VCAT included the question whether the permits should remain issued with the existing conditions. Mr Goubran KC responded in turn with a submission to the effect that VCAT's order did not say that the permits were to remain issued with the existing conditions. That was not a sufficient response to my suggestion. The proper identification of the statutory question that was, or the statutory questions that were, before VCAT is not concluded by the terms in which VCAT may have expressed its order. Mr Goubran KC then went back to the exchange between VCAT and Mr Morris QC referred to in [162] above of this judgment. Mr Goubran KC reiterated HTV's contention that this exchange indicated that Mr Morris QC had invited the Tribunal to ignore, or to give no substantive consideration to, the question of whether the conditions should 'stay or go'. Mr Goubran KC repeated HTV's contention that this exchange led to VCAT actually ignoring, and actually giving no substantive consideration to, the question of whether the conditions should stay or go. However, as indicated already, I consider that HTV has mischaracterised the exchange between Mr Morris QC and VCAT and that, in any event, VCAT certainly did not fail to deal with the question whether the conditions should 'stay or go'.[722]

384 Accordingly, HTV is not assisted by Dawson or by the Commonwealth cases discussed in Dawson to which Mr Goubran KC referred.

The cases of Day and Van der Meyden in more detail

385 The case of Day has already been mentioned many times above.[723] In short, I consider that Day assists Mr Kilpatrick considerably. In a moment, I will turn to what Mr Goubran KC called his 'discrete' set of oral submissions about Day.[724] In the course of those submissions, and previously,[725] Mr Goubran KC also made brief reference to the earlier case of Van der Meyden[726] to which JD Phillips J had referred in Day. I will deal with the submissions of Mr Goubran KC about Day and Van der Meyden in the context of HTV's prior written submissions in this Court about those cases. But first, some additional background.

386 It will be recalled that, at VCAT, Mr Morris QC relied on Day to a substantial extent in his oral submissions.[727] In response, Mr Vorchheimer (for HTV) told VCAT that he was taken by surprise.[728] Both sides later filed written submissions on Day by leave of VCAT.[729] In HTV's post-hearing VCAT submissions, it was said that Day did not assist Mr Kilpatrick, but rather supported HTV's argument that VCAT should not have regard to s 99(a)(iii)(B). In reply, Mr Kilpatrick said the opposite. For the reasons already given,[730] I need not rehearse the detail of those respective submissions.

387 VCAT's view regarding Day is set out in paragraphs [58]-[68] of its reasons.[731] In summary, VCAT said (minor corrections made):

(a) that in Day the landowners made planning permit applications to the Nunawading Council in respect of unreserved land with the aim of enlivening the process for compensation under s 98(2) of the PEA for planning blight;

(b) that three of those permit applications later came to the attention of the AAT in the course of 'failure appeals' i.e. appeals under the then provisions of s 79 of the PEA;

(c) that a fourth permit application came to the attention of the AAT in the course of a 'conditions appeal' i.e. an appeal under the then provisions of s 80 of the PEA;

(d) that the orders made by the AAT in the three 'failure appeals' were the subject of appeals on a question of law to this Court;

(e) that there was no appeal to this Court in relation to the 'conditions appeal';

(f) that in those circumstances Day was not determinative of the present case;

(g) that the relevant comments in Day were 'very brief and obiter';

(h) that, on the other hand,[732] the following statement in Day[733] was significant (VCAT's underlining):

Under s 99(a)(iii), it is not inappropriate that the tribunal should exercise a power to 'disallow any appeal'. That sub-paragraph applies only where the responsible authority fails to grant a permit within the period prescribed for the purposes of s 79 or grants a permit subject to a condition which is not acceptable to the applicant. The tribunal may then disallow the appeal against that failure or that condition "on the ground that the land is or may be required for a public purpose..."

(i) that the underlined text indicates that where VCAT is dealing with a challenge to a permit condition, VCAT has a 'ready capacity to potentially make a Section 99(a)(iii) order';[734]

(j) that, accordingly, there is nothing wrong with an applicant in VCAT 'utilising what would otherwise be a "conditions appeal" at the Tribunal, to instead seek a "disallow the application" order'.[735]

388 At no time has HTV challenged those aspects of VCAT's view about Day that are summarised in paragraphs (a)-(g) of the previous paragraph.

389 Indeed, HTV's own principal contention about Day in its written submissions to this Court was to the effect that Day turned on the provisions of s 98(2) of the PEA, not on the provisions of s 99(a); and that, therefore, any comments of JD Phillips J in Day about s 99(a) of the PEA (including the comments quoted in sub-paragraph (h) of [387] above) were mere obiter dicta: see [18] of HTV's written reply.[736]

390 On the other hand, from time to time HTV has contested VCAT's view as to how the comments of JD Phillips J in Day could or should be applied in the present case. Thus, by contrast with sub-paragraphs (i) and (j) of [387] above, HTV made the following submissions in [19] of its written reply:[737]

(a) that JD Phillips J did not conclude that the AAT had jurisdiction to make an order of the nature in issue here;

(b) that, instead, his Honour considered that the AAT had the power to make a declaratory order as an incident of the power under s 85(1)(a) of the PEA (being the power to direct that a permit not be granted);

(c) that, thus, his Honour did not conclude that there was any stand-alone 'jurisdiction/power' as the Senior Member of VCAT (allegedly) did in this case;

(d) that, rather, Day indicates that the power of the AAT - and now the power of VCAT - to declare that the land was needed for a public purpose was an incident (or 'amplification') of the exercise of power on review; and

(e) that the Senior Member of VCAT did not perform the de novo review that was required of him (semble, in accordance with Day) in respect of Mr Kilpatrick's applications.

It will be noted that these submissions, though nominally directed to ground 1 only, seemed - at least insofar as summarised in (d) and (e) above - to pick up ground 3 also.

391 However, in [20] of its written reply, HTV had gone on to invite the Court to follow the earlier decision of Anderson J in Van der Meyden (which had been distinguished by JD Phillips J in Day) 'instead' of Day itself.[738] HTV foreshadowed making further submissions about both cases at the oral hearing.[739]

392 In fact, as mentioned above,[740] Mr Goubran KC said very little about Van der Meyden at the oral hearing. He did not expressly repeat HTV's suggestion that I should follow that case instead of Day. That is not surprising, because, as I will further indicate, Van der Meyden was decided by reference to statutory provisions very different from the corresponding current provisions. Nevertheless, given HTV's insistence on every word of its written materials, I will say more about the decision in Van der Meyden in due course.

(a) that, generally speaking, for the purpose of interpreting statutes, what matters most, in the absence of any directly applicable and binding decision of another court, is the text and context (which may include the legislative history) of the relevant statutory provisions themselves, not things that may have been said by other courts in construing similar legislation or even in construing the same legislation;[741]

(b) that the relevant statutory provisions changed considerably between the time relevant to Van der Meyden (1979) and the time relevant to Day (1990);

(c) that the powers of the AAT as at the time relevant to Day were less extensive than the corresponding powers of VCAT now; and

(d) that, even so, much of what was said in Day would strongly favour the upholding of VCAT's decision in the present case.

394 In his 'discrete' oral submissions on Day,[742] Mr Goubran KC essentially repeated the points set out in [18]-[19] of HTV's written reply, which are summarised in [389]-[390] above.

395 Mr Goubran KC's first point in this regard was to the effect that the relevant statements in Day were obiter dicta. While Mr Kilpatrick has not disputed this, I do not see the point as being so clear cut. It is true that Day ultimately turned on the provisions of s 98(2) of the PEA rather than the provisions of s 99(a). On the other hand, the reasoning of JD Phillips J in Day was intricate. His Honour felt the need to consider, in detail, both s 98 and s 99. Indeed, while noting that the permit applications in question had been made with a view to claiming compensation under s 98(2), and that only para (d) of s 99 referred to such a claim for compensation, his Honour stated that 'the rest of ss 98 and 99 is material, as will be seen, for the contrast thereby afforded'.[743] However, as mentioned above,[744] it is not necessary for present purposes to distinguish between ratio decidendi and obiter dicta in the judgment of JD Phillips J in Day. His Honour was renowned as a scholarly and meticulous judge and as a master of statutory interpretation. He was elevated to the Court of Appeal on the creation of that body in 1995. Whatever may be the proper analysis of his Honour's reasons as between ratio decidendi and obiter dicta, I have found his Honour's judgment typically helpful.

396 I do agree with Mr Goubran KC that Day provides no support for any suggestion that VCAT had original jurisdiction in this matter. However, as mentioned several times above, it is now common ground, and I accept, that VCAT did not have such jurisdiction.

397 On the other hand, I do not accept that VCAT believed that it had, or that VCAT purported to exercise, original jurisdiction in this matter. Nor do I accept that VCAT believed that it had, or that VCAT purported to exercise, some kind of 'stand-alone' jurisdiction or power in this matter. That would have been quite contrary to submissions made repeatedly to VCAT by both sides.[745] VCAT did not ever use the expression 'stand-alone' or any like expression. To the contrary, on many occasions VCAT referred to the proceedings before it as being applications for review.[746]

398 Mr Goubran KC reiterated the submission summarised in sub-paragraph (d) of [391] above to the effect that the power of the relevant tribunal to declare that the land was needed for a public purpose was an incident (or 'amplification') of the exercise of power on review.[747] He did so mainly by reference to the following remarks of JD Phillips J in Day:[748]

Against this, it must be observed that s 99 does not purport to confer power, as such; it is but an indirect amplification of what appears in s 85(1). Section 85(1)(a), allows the Tribunal, after hearing an appeal, to direct that a permit must not be granted; it is only by implication that one gathers, from s 99(a)(ii), that it may so direct 'on the ground that the land is or may be required for a public purpose' in a case involving a claim for compensation under s 98(1).

However, JD Phillips J did not refer to an 'incident' of the 'exercise' of power. He did not use the word 'incident' at all. Nor did his Honour refer to the 'amplification' of the 'exercise' of power. Rather, his Honour referred to an indirect amplification of what appears in s 85(1). In other words, his Honour was saying that s 99 indirectly amplifies what appears in s 85(1), namely a set of powers. Thus the statutory powers of the Tribunal under s 85 of the PEA were seen to be amplified by reference to s 99(a). This helps Mr Kilpatrick, not HTV.

399 In his oral submissions on Day, Mr Goubran KC also reiterated the submission contained in [19] of HTV's written reply summarised in sub-paragraph (e) above, namely that Day supported the proposition that the Senior Member was required to perform a de novo review of Mr Kilpatrick's applications.[749] However, there is nothing in Day that would support that proposition. As I have mentioned already,[750] in my view the Senior Member was under no such obligation, and he did all that was required of him in respect of Mr Kilpatrick's applications.

400 Hence Mr Goubran KC's 'discrete' submissions about Day - which corresponded with the submissions in [18] and [19] of HTV's reply - were, to the extent that they related to the matters presently in dispute between the parties, either misconceived or misplaced or both. Further, in my opinion, there is considerably more in Day that supports VCAT's decision in favour of Mr Kilpatrick in the present case - more, perhaps, than VCAT itself may have realised. To demonstrate that, I will need to return to Day in yet more detail in due course.

401 However, for ease of exposition and as a matter of chronology, I should first deal with the submission in [20] of HTV's written reply that this Court should follow Van der Meyden instead of Day, even though Mr Goubran KC relied only faintly on Van der Meyden in his oral submissions and did not expressly repeat HTV's suggestion that I should follow Van der Meyden instead of Day. It seems apt to adopt chronological order for the additional reason that, in Day, JD Phillips J distinguished Van der Meyden largely because of intervening statutory changes.

402 The Van der Meydens owned 100 acres of land in the Shire of Eltham on which they conducted a piggery. The land was close to the Kinglake National Park. It became covered by a 'Conservation Zone' under certain planning instruments. This zoning severely restricted the use of the land. The Van der Meydens applied for permits to subdivide the land and clear it of timber and foliage. The authorities did not, within the prescribed period, deal with the permit applications. The Van der Meydens lodged appeals to the Town Planning Appeals Tribunal under the Town and Country Planning Act 1961 (since repealed). By the appeals, they challenged the failures to grant the permits. In the alternative, they contended that any refusal by the Tribunal to direct the issue of the permits should be on the basis that the land was deemed under the planning instruments to be reserved for a public purpose, or was or will be required for a public purpose. They contended that this would qualify them for compensation pursuant to ss 41 and 42 of the Town and Country Planning Act 1961 (as then in force).[751]

403 The Tribunal issued determinations disallowing the appeals. On the other hand, in its reasons, the Tribunal stated that the planning restrictions arose by reason of a desire to conserve a feature of the land for the public. The Tribunal further stated in its reasons (as had been sought in the alternative by the Van der Meydens) that, in the circumstances, the permits fell to be refused because the land 'is or will be required for a public purpose' or 'is pursuant to [a relevant planning instrument] reserved or deemed to be reserved for a public purpose'.[752]

404 The authorities, being concerned about their potential liability for compensation, purported to appeal on questions of law to the Supreme Court. However, their real challenge was to the reasons for the Tribunal's determinations rather than to the determinations themselves.

405 Anderson J held that the Tribunal had gone wrong in law in several ways. In his Honour's view-

(a) the only relevant power of the Tribunal was its power under the then s 22(1)(a) of the Town and Country Planning Act 1961 to 'direct that any permit shall or shall not be issued';[753]

(b) thus the Tribunal's powers and the content of its determinations were 'strictly limited';[754]

(c) the Tribunal itself had no power to issue or refuse to issue a permit - that was the role of the responsible authority;[755]

(d) for compensation purposes, the relevant reasons were those of the responsible authority, not those of the Tribunal;[756]

(e) the dedication of the land to a Conservation Zone did not amount to the land being reserved or being deemed to be reserved for a public purpose within the meaning of s 42(1)(c)(i) of the Town and Country Planning Act 1961;[757]

(f) likewise, the refusal of a permit because of the existence of the Conservation Zone did not amount to a refusal on the ground that the land 'is or will be required for a public purpose' within the meaning of s 42(1)(c)(ii) of the Town and Country Planning Act 1961;[758]

(g) it was not within the province or power of the Tribunal to make a declaration about whether the land was reserved or required for a public purpose, and in any event the land was not so reserved or required;[759]

(h) the pronouncements in the Tribunal's reasons about 'public purpose' were void and of no effect and could not give rise to any estoppel binding on the authorities;[760]

(i) as a result, there was nothing in what the Tribunal had done that put the authorities in jeopardy as to compensation;[761]

(j) the authorities had been successful before the Tribunal in relation to the applications for permits, and therefore there was no occasion to interfere with the formal determinations of the Tribunal, and the orders nisi that had been obtained by the authorities to review the determinations of the Tribunal would be discharged.[762]

406 In my opinion, Van der Meyden does not assist HTV, because it is distinguishable in relation to every one of the matters referred to in the previous paragraph, as follows:

(a) in contrast to the statutory framework that was applicable in Van der Meyden, the current equivalent of s 22(1)(a) of the (repealed) Town and Country Planning Act 1961, namely s 85(1)(a) of the PEA, was not the only relevant source of power for VCAT in the present case. As indicated above,[763] VCAT had numerous other potential sources of power;

(b) hence, unlike the Town Planning Appeals Tribunal in Van der Meyden, VCAT's powers were not 'strictly limited';

(c) whether or not VCAT itself had power to actually issue a permit in the present case, VCAT certainly had power to attach, or to not attach, the public purpose ground to a decision it made on an application for review of a kind referred to in s 99(a)(iii) of the PEA, because s 99(a)(iii) (unlike the former s 42 of the Town and Country Planning Act 1961) expressly recognises such a power;

(d) therefore, for compensation purposes, the relevant reasons in the present case (unlike in Van der Meyden) were those of VCAT, not those of the responsible authority;

(e) it is common ground that, by virtue of PAO5, Mr Kilpatrick's land, unlike the Van der Meydens' land, was reserved for a public purpose;

(f) the reservation of Mr Kilpatrick's land, unlike the re-zoning to the Conservation Zone in Van der Meyden, was clearly available as a proper contributor to a finding by VCAT that Mr Kilpatrick's land 'is or may be required for a public purpose';

(g) in the present case, in the light of the express terms of s 99(a)(iii) of the PEA, it was plainly within the province and power of VCAT to 'declare', in disposing of Mr Kilpatrick's applications for review, that Mr Kilpatrick's land 'is or may be required for a public purpose', whereas in Van der Meyden it was held that s 42 of the Town and Country Planning Act 1961, being in quite different terms, did not authorise the Town Planning Appeals Tribunal to make such a declaration;

(h) it follows that, unlike the reasons for decision of the Town Planning Appeals Tribunal in Van der Meyden, VCAT's 'declaration' in relation to public purpose was fully open to it and by no means void;

(i) unlike the decision of the Town Planning Appeals Tribunal in Van der Meyden, VCAT's decision in the present case may well put HTV in (proper) jeopardy as to compensation;

(j) unlike the authorities in Van der Meyden, HTV was not successful in relation to the formal order made below.

As will appear, some of these reasons for regarding Van der Meyden as being devoid of current significance were identified by JD Phillips J in Day.

408 The Days owned eight adjoining lots of land in Nunawading, known as lots 2 to 9 inclusive. The land was zoned as 'Residential C'. It was then rezoned 'restricted light industrial'. New planning controls under the Nunawading Planning Scheme accompanied the rezoning. Any development had to comply with a new 'concept plan' of the City of Nunawading. The concept plan provided for street construction and road widening, with associated mandatory setbacks, among other things. The plan affected the eight lots in different ways. However, none of the land was land 'reserved for a public purpose' within the meaning of or for the purposes of s 98(1) of the PEA.

409 With a view to making a claim for compensation under s 98(2) (as distinct from s 98(1)) of the PEA for 'planning blight', the Days applied to the Nunawading Council for planning permits in respect of their land. They made four applications. One application, in respect of lots 2 and 3, was for 'an office and warehouse'. Another application, in respect of lots 4, 5, 6 and 7, was for 'use and development of two factories'. The third application was in respect of lots 8 and 9 and was for 'use and development of factory'. In each of those three cases, a plan of the proposed building or buildings was lodged with the application. The fourth application was in respect of lot 7 only. There was no accompanying plan for lot 7 and the application described what was proposed as follows: 'Develop the land for industrial use (to determine a claim for compensation)'. If the concept plan was to be followed, lot 7 would be almost wholly consumed by road construction.

410 All of these applications for permits for use or development were pitched in such terms as to be plainly inconsistent with the requirements of the concept plan. As JD Phillips J later noted:[765]

The [Days] made no secret of this. Their avowed intention was to procure a refusal of the applications in order to found the claim for compensation under s 98(2).

However, the Nunawading Council did not (at least in terms) refuse the applications. Rather, it advised the Days by letter, in relation to the first, second and fourth applications, that the applications could not be further processed in their current form because of non-compliance with the concept plan. As for the third application (in respect of lots 8 and 9, for use and development of a factory) the Nunawading Council advised the Days that a permit was issued subject to a condition requiring the submission of an amended plan accommodating the requirements of the planning scheme and adherence to the concept plan.

411 The Days then lodged notices of appeal to the AAT. As to the first, second and fourth permit applications, they appealed under s 79 of the PEA (as it then stood) on the ground that the Nunawading Council had failed to determine the applications within the time prescribed. As to the third application, the Days appealed under s 80 (as it then stood) of the PEA against the condition imposed on the permit granted.

412 Before the AAT, all four appeals were heard together. In due course, the AAT delivered its decision and published written reasons. The AAT decided on the evidence that the land shown on the concept plan for street construction and road widening was not reserved, or proposed to be reserved, for a public purpose but was 'land that is or will be required for a public purpose'.[766]

413 On the appeals against the failure of the council to determine the first, second and fourth permit applications, the AAT made the following determination:[767]

That [the appeals] are disallowed on the ground that a portion of the land is or will be needed for a public purpose pursuant to s 98(2) of the [PEA].

On the appeal against the condition attached to the permit that had been granted, the AAT concluded that 'the tribunal lacks jurisdiction to disallow an appeal against a condition on the ground that the land is or may be required for a public purpose',[768] because the land in question was not reserved land. That reasoning accorded with the legislation, in that s 99(a) of the PEA picked up ss 98(1)(a), (b) and (c) of the PEA but did not pick up s 98(2) of the PEA. The AAT then turned to consider the validity of the condition and held that it was ultra vires. The AAT made the following formal determination: 'That [the appeal] is disallowed and it is directed that [the relevant planning permit] be cancelled pursuant to s 85(g)(i) and (ii) of the [PEA]'.[769]

414 The City of Nunawading appealed to the Supreme Court under s 52 of the Administrative Appeals Tribunal Act 1984 ('the AAT Act') against the AAT's determination on the three appeals arising out of the council's failure to determine the first, second and fourth permit applications. Section 52 of the AAT Act was the then broad equivalent of the present s 148 of the VCAT Act. There was no appeal to the Court (by either side) against the AAT's determination on the conditions appeal.

415 Thus Day was a case in which test or token permit applications had been made under the PEA and test or token appeals had been brought to the AAT - each for compensation purposes only. Indeed, those facts were expressly noted by JD Phillips J on five separate occasions in his Honour's judgment.[770] As indicated above,[771] his Honour also noted[772] that it had been submitted, in the course of argument, that it was a 'common practice' in this field to make a token permit application in order to have it refused on the grounds specified in s 98(2) of the PEA, as a precursor to mounting a compensation claim. In my view, his Honour not only noted the submission, but implicitly accepted it. I am of that view partly because of the way in which his Honour in fact dealt with the case generally,[773] and partly because, as mentioned above,[774] the submission was agreed between the two experienced planning barristers who appeared for the opposing parties in Day, namely Mr Robert Osborn (later a judge of this Court), for the City of Nunawading, and Mr Craig Porter, for the Days. It was also common ground between those two experienced planning barristers that, generally speaking, it was legitimate and effective for landholders to make test or token permit applications under the PEA and to bring test or token appeals to the AAT (the precursor of VCAT in VCAT's review jurisdiction) in relation to the same. Mr Osborn had submitted that there was an exception where it would have been legally impossible for the application to be granted. However, JD Phillips J did not accept that there was an exception of that width. His Honour did observe[775] that there was much to be said for Mr Osborn's submission that an application for a planning permit for a prohibited use would not be an application contemplated by the PEA. However, that extreme situation was not present in Day. Nor is it present here. Although it might not have been possible to grant the permits for which the Days had applied (because such permits would have been inconsistent with applicable planning requirements), in the view of JD Phillips J:[776]

...nonetheless they were not unauthorised or invalid applications and they were applications that could properly be dealt with by the responsible authority and, upon the failure of the council to deal with them, by the tribunal on an appeal against that failure under s 79 of the [PEA]: see and cf M.M.B.W. v Cullen.[777]

His Honour went on to describe 'the applications' as being 'thus justified under the Act'.[778] There was no presently relevant distinction between the four permit applications that the Days had lodged with the council, save that the council dealt differently with one of them. Consistently with this, the remarks by JD Phillips J to the effect that 'they' were not unauthorised or invalid applications, and to the effect that they were 'justified under the Act', read in context, were applicable to all of the permit applications. There is every reason to believe, from the tenor of this and other parts of the judgment of JD Phillips J in Day, that his Honour considered that all of the appeals to the AAT, including the appeal against the condition imposed on the one permit granted, were properly able to be dealt with by the AAT.[779]

416 The next issue dealt with by JD Phillips J in Day concerned the ground that had been adopted by the AAT for disallowing the appeals against the council's treatment of the first, second and fourth permit applications. As indicated above,[780] that ground, as expressed, was that the land 'is or will be needed for a public purpose pursuant to s 98(2) of the [PEA]'. I note that JD Phillips J made no criticism of the AAT for using the words 'pursuant to 98(2) of the [PEA]'. Rather, his Honour treated those words as conveying only that the AAT was adopting the ground 'described in s 98(2)'.[781] In my view, a corresponding allowance should be made in favour of VCAT's corresponding use of language in the present case.

417 His Honour held that, under s 98(2) of the PEA, if there are multiple reasons available for rejecting permit applications, it is open to the responsible authority to make a choice, 'always supposing it does so by reference to proper considerations'.[782] While a token permit application might be made, s 98(2) 'contemplates only a bona fide refusal by reference to the ground which is specified'.[783] His Honour explained that there must be a 'proper causal link' between the need of the land for a public purpose and the refusal of the permit application.[784] This is the part of his Honour's judgment on which HTV was apparently relying in relation to what I have described as HTV's 'cryptic argument'.[785] As already shown,[786] that argument breaks down on the facts. On the other hand, Mr Kilpatrick's case is buttressed by the insistence by JD Phillips J that responsible authorities must deal with permit applications, including token permit applications, in a bona fide way. The same principle applies, of course, to all participants in the decision-making process, including relevant authorities such as HTV and tribunals such as VCAT. And, as HTV's own attempt to rely on this part of Day assumes, the same principles must apply to decision-making in relation to the public purpose ground as expressed in s 99 of the PEA.

418 JD Phillips J distinguished the generalised planning requirements of the Conservation Zone dealt with in Van der Meyden from the provisions for street construction and road widening in the concept plan in question in Day. It was common ground that the latter were 'public purposes'.[787]

419 It was in this context that JD Phillips J made his abovementioned observations about the difference between the zoning of land, on the one hand, and the reservation of land for a public purpose, on the other hand, being the observations that, strikingly, HTV's written reply fails properly to reflect.[788]

420 In the end, on this question (i.e. the question of properly specifying the ground of refusal) JD Phillips J determined that it had been open to the AAT in Day to conclude that the permits might properly be refused on the ground that the land was at least in part needed for a public purpose.[789]

421 In the next section of his Honour's judgment in Day,[790] JD Phillips J analysed the determination of the AAT as against its powers under the PEA.

422 Initially, his Honour observed that, under the old s 22 of the (repealed) Town and Country Planning Act 1961, the appellate tribunal was regarded as having much the same powers in relation to permit applications as the responsible authority had at first instance.[791] However, his Honour went on to say:[792]

Although one may wonder how far change was intended, the legislation is now differently worded and the position is not at all clear.

... [W]hen hearing an appeal, the tribunal is not expressly empowered to make any determination that the responsible authority might have made. Section 85(1) sets out the tribunal's powers.

Indeed, his Honour proceeded to say that the AAT 'does not simply stand in the shoes of the responsible authority'.[793] He observed that this was confirmed by other provisions of s 85(1), such as paragraphs (d)(i) and (e). He said that, 'nothing in s 85 suggests in so many words that after hearing an appeal the tribunal has the power to "refuse" a permit on any ground at all, let alone to refuse it on the specific ground mentioned in s 98(2)'.[794]

423 I note that s 25 of the AAT Act - the then broad equivalent of s 51 of the VCAT Act[795] - was not mentioned in his Honour's judgment in Day. Presumably, s 25 of the AAT Act was thought not to apply. With respect, that view was probably correct, in that s 25 was expressed to operate in relation to applications for review of decisions, not in relation to appeals against decisions; and ss 79 and 80 of the PEA, as then in force, referred to appeals rather than to applications for review.[796]

424 In any event, in analysing the terms, the possible meanings, the validity and the possible effects (for compensation purposes) of the determination made by the AAT, JD Phillips J largely confined himself to the provisions of the PEA, as then in force. In the end, his Honour concluded that the determination of the AAT did not amount to a 'refusal by the responsible authority to grant a permit', within the meaning of s 98(2) of the PEA, nor, of course, to a refusal by the responsible authority to grant a permit 'on the ground that the land is or will be needed for a public purpose' within the meaning of that sub-section.

425 As his Honour had foreshadowed,[797] his Honour was fortified in reaching that conclusion by a comparison between s 98(2) of the PEA and the rest of ss 98 and 99 of the PEA (as then in force). His Honour noted that s 98(2) referred only to the responsible authority and not the tribunal; and that, in this respect, s 98(2) was in 'marked contrast' to s 99(a), which referred to both.[798] In that regard, s 98(2) was 'more limited' than s 99(a).[799]

426 JD Phillips J examined the legislative history to that time, observing that it did not suggest a different result.[800] His Honour noted that, in Van der Meyden, Anderson J had emphasised that what was relevant under s 42(1)(c)(ii) of the Town and Country Planning Act 1961 was the refusal by the responsible authority and the ground adopted by it, and not the view of the Town Planning Appeals Tribunal when disallowing an appeal. In 1979, just after Van der Meyden, there had been a relevant amendment to s 42 of the Town and Country Planning Act 1961. However, by 1988 (the relevant time for Day), the legislation had changed again and had become 'significantly different'.[801] In s 99 of the PEA, there was no reference at all, in relation to claims under s 98(2), to a direction by the Tribunal that the permit be not granted - in 'marked contrast' to the position in relation to claims under s 98(1).[802]

427 In the view of JD Phillips J, a claimant for compensation under s 98(2) needed, at least, a direction to the responsible authority to refuse the permit on the ground specified in s 98(2).[803] Thus the claimant needed more from the appellate tribunal than a mere disallowance of the appeal.[804] To 'disallow' an appeal is simply to dismiss it.[805] The appellate body is simply declining to intervene.[806]

428 This brought JD Phillips J to consider three possibilities relating to the question of what the determination of the Tribunal amounted to.

429 The first possibility was that the Tribunal was attempting 'to exercise the power described in s 99(a)(iii) although, in the expression of the ground incorporated in the determination, adapted to the wording of s 98(2).'[807] I note the use here by his Honour of the word 'power'. His Honour used that word again in the next sentence, referring to a mismatch (by the AAT) of the 'power' of the AAT 'mentioned in s 99(a)(iii) and the power of the responsible authority referred to in s 98(2)'.[808] Immediately after that observation came the single passage from Day that was quoted by VCAT in the present case.[809] In the first sentence of that passage, JD Phillips J says that, under s 99(a)(iii), it is not inappropriate that the tribunal should exercise a power to 'disallow any appeal'.[810] His Honour goes on to explain that, as s 99(a) is concerned only with cases where the claim for compensation arises out of the reservation or proposed reservation of land for a public purpose, it may not matter what the responsible authority has done.[811] All of this is, of course, helpful to Mr Kilpatrick in the present case.

430 JD Phillips J went on to refer twice more to 'the power in s 99(a)(iii)'.[812] His Honour did so while noting that s 99(a) depended on the reservation or proposed reservation of land, which was not the case in Day, but which is, of course, the case in the present matter.[813]

431 Turning to the second possibility relating to the question of what the determination of the AAT amounted to, his Honour identified the possibility that the AAT's determination was an exercise of some general power in the AAT to disallow appeals, the AAT choosing at the same time to state the reason therefor.[814] On that view, his Honour said, the determination was made altogether independently of s 99(a)(iii).[815] Significantly, for present purposes, his Honour then proceeded to say:[816]

The power to allow or disallow an appeal, although not expressly conferred upon the tribunal in s 85(1), is surely implicit in the appeal process which is created by the statute.

432 On the other hand, his Honour observed that it was another matter whether, in dismissing the appeal, the AAT had the power to declare (as it did in Day) that the land, at least in part, was or would be needed for a public purpose.[817]

433 His Honour noted that that point had arisen in Van der Meyden. He noted that Anderson J had held that the Town Planning Appeals Tribunal had had no power under the Act as it then stood to go on and declare that the land was needed for a public purpose. What JD Phillips J said next is important for present purposes. His Honour said:[818]

However, the Act is now significantly different... [The relevant statutory change] surely justifies the conclusion that nowadays the tribunal may, at least in cases under s 99(a), declare that the land is needed for a public purpose when directing that the permit must not be granted or when disallowing an appeal under s 79. To that extent, what was said by Anderson J seems no longer apt.

There can be no doubt that what JD Phillips J said in that regard was equally applicable to the power of the relevant tribunal when disallowing an appeal (now an application for review) under s 80 of the PEA in relation to a planning condition.

434 Next, JD Phillips J referred to a possible contention that, while the AAT had been given the power to declare the public purpose for which 'the land is or may be required' when acting under s 99(a), it had not been given that power when acting in relation s 98(2).[819]

435 What immediately follows in Day are two paragraphs that include a passage on which HTV has purported to rely (as indicated above),[820] but which, because of the context just described, must actually be seen as unhelpful to HTV's case and as helpful to Mr Kilpatrick's case. The passage supports a broad view of the powers of the AAT (and now, of VCAT) in relevant respects. JD Phillips J said:[821]

Against this, it must be observed that s 99 does not purport to confer power, as such; it is but an indirect amplification of what appears in s 85(1). Section 85(1)(a), allows the tribunal, after hearing an appeal, to direct that a permit must not be granted; it is only by implication that one gathers, from s 99(a)(ii), that it may so direct 'on the ground that the land is or may be required for a public purpose' in a case involving a claim for compensation under s 98(1). It is but a short step to imply a like power to declare the ground in a case involving a claim for compensation under s 98(2), and I do not think that the Act should be read so restrictively as to exclude that implication. If this be correct, it follows that the tribunal, in an appropriate case, can direct that a permit be not granted on 'the ground that the land is or will be needed for a public purpose', within the meaning of s 98(2).

However, that is not what the tribunal did in these cases: instead, it dismissed the appeals. That power not being seriously in question, it may well be that, because of s 99(a)(iii), the tribunal must be seen as having also the power to declare the ground when dismissing the appeal. Again, if it may do so in the terms of s 99(a)(iii) that 'the land is or may be required for a public purpose', I think that it can also spell out the ground in terms of s 98(2), that 'the land is or will be needed for a public purpose'. After all, the tribunal should give reasons when dismissing the appeal and to spell out the ground is scarcely to do more than to encapsulate those reasons. Accordingly, and notwithstanding what was said by Anderson J in Van der Meyden, I see no reason, on the legislation as it now stands, to suppose that the determination which was formulated by the tribunal in relation to these three appeals was not open to it.

436 On the other hand, in his Honour's view, while the AAT had the power to make its determination in the terms which it adopted, that did not sufficiently avail the Days for compensation purposes. It remained the case that the AAT had done no more than dismiss the appeals against the failure of the responsible authority to deal with the permit applications. Thus the Days were no further advanced towards the refusal necessary to their claim for compensation under s 98(2).[822]

437 JD Phillips J then turned to the third possibility, which he identified as being that, in saying that it was 'disallowing' the appeals, the AAT meant that the permit applications were refused - something that at least fitted with the declaration of the ground found in s 98(2).[823] However, this possibility did not work for the Days either. It was only where the AAT decided that it did not wish to intervene in what had occurred that it would be appropriate for the AAT to disallow or dismiss the appeal.[824]

438 On the other hand, this observation helps Mr Kilpatrick in the present case. It is plain that VCAT did not wish to intervene in what had occurred in this case - namely, the imposition, at council level, of the conditions in question. It was therefore appropriate in the present case for VCAT to make an order disallowing the applications for review. And, in accordance with the earlier passages of the judgment in Day to which I have referred, it was also appropriate for VCAT to attach the public purpose ground to the order for disallowance.

439 JD Phillips J went on to contemplate the possibility that the formal determination of the AAT should be read and understood as a decision that the permits be refused on the ground mentioned in s 98(2).[825] His Honour was prepared to allow that that was a proper understanding of the determination. However, this would still not avail the Days for compensation purposes, because nothing in the legislation conferred upon the AAT a power actually to 'refuse' the permit applications; that was the task of the responsible authority.[826] Next, JD Phillips J asked himself whether the AAT's formal determination should be read and understood as equivalent to a positive direction to the responsible authority that the permits be not granted. Might this be equivalent to a refusal under s 98(2)? Even this did not avail the Days. There remained the possibility of the permit applications failing on either the public purpose ground or another ground. It was unsafe for the Supreme Court to read into the determination actually made a direction that the permits not be granted on the ground specified in s 98(2).[827] Further, the Days had not instituted any appeal to the Supreme Court against the AAT's determination. The Days had obtained from the AAT the very order which they had sought from the AAT.[828] In addition, there might be little point in treating the determination of the AAT as amounting to something more positive than it purported to be.[829] It might still not amount to the 'refusal by the responsible authority' which appeared to be required under s 98(2).[830] In whatever way the AAT's determination might be viewed, the claim for compensation under s 98(2) would still depend upon a step which had not yet occurred.[831]

440 On the other hand, usefully for Mr Kilpatrick, JD Phillips J proceeded to describe the AAT's determination as being not unlike that which was 'expressly recognised' by s 99(a)(iii). In like vein, his Honour then said (my emphasis):[832]

According to the determination as formulated, the tribunal was refusing to intervene at the instance of the [Days], although purporting to declare at the same time the ground for its non-intervention. Such a determination, although worded slightly differently, is given specific effect by s 99(a)(iii) in the context of claims for compensation under s 98(1)(a), (b) or (c); but that may be regarded as a special case, for reasons that I have already attempted to set out.

Thus, it seems to me that JD Phillips J would have seen no difficulty or problem with the form of order adopted by VCAT in the present case, being a type of determination that is given 'specific effect' by s 99(a)(iii) of the PEA.

441 In the end, JD Phillips J concluded that the appeals by the City of Nunawading fell to be dismissed. His Honour said:[833]

The tribunal having simply dismissed the appeals of the landowners to the tribunal and that determination not serving to lay the foundation for a claim for compensation under s 98(2), there is no basis for an appeal by the municipality and the appeals must be dismissed.

Even this helps Mr Kilpatrick. It shows that there was nothing wrong with VCAT taking into account Mr Kilpatrick's prospective claim for compensation. It is also relevant to HTV's standing to bring the present challenge.[834]

442 The final comments made by JD Phillips J on the substantive issues in Day also help Mr Kilpatrick. His Honour said that if, contrary to his own view, the AAT's determination did lay the foundation for the Days claiming compensation under s 98(2), the appeals by the council would still fall to be dismissed.[835] That was so because his Honour had rejected the two points taken by the council on the appeals, namely, first, the point that the Days' permit applications to the council were not authorised under the legislation (and that therefore the AAT lacked jurisdiction); and, second (in the alternative), the point that the AAT erred when it concluded that the applications could properly be refused on the ground that the land, at least in part, was or would be required for a public purpose. In the view of JD Phillips J, neither point had been made out, and therefore the council's appeals fell to be dismissed in any event.[836]

443 Since Day was decided, the statutory picture has changed in a way that might have assisted the Days and that certainly does (further) assist Mr Kilpatrick. In or shortly after 1998, to coincide with the replacement of the AAT by VCAT, the Planning Appeals Act 1980 was repealed and ss 79 and 80 of the PEA were amended to refer to applications for review rather than to appeals. Those sections thus became enabling enactments within the meaning of the VCAT Act; and VCAT thus gained review jurisdiction in respect of applications for the review of decisions to which s 79 or s 80 of the PEA applied. The VCAT Act as a whole became applicable to applications for review made under s 79 or s 80 of the PEA. This remains the case today. The VCAT Act confers many presently relevant powers on VCAT.[837] Those powers include, of course, the powers conferred by s 51 of the VCAT Act.[838] In my view, as I have already indicated,[839] VCAT's decision and order in the present case is supported by, among other sources of power, s 51(1) of the VCAT Act, which confers on VCAT, in exercising its review jurisdiction, all the relevant functions of the decision-maker (here, all the relevant functions of Wyndham City Council); and also by s 51(2) of the VCAT Act, which empowers VCAT to, among other things, affirm a decision under review.

444 To sum up on this aspect, Van der Meyden does not assist HTV at all. Neither does Day. Quite the opposite. Day helps Mr Kilpatrick substantially. And Mr Kilpatrick's position is only further strengthened by the statutory changes that have been made since Day was decided.

Summary of Mr Boston KC's oral address, as directed to HTV's proposed grounds of appeal

445 As mentioned above,[840] Mr Boston KC's address was structured, for the most part, by reference to HTV's proposed grounds of appeal. I will summarise the points made by Mr Boston KC in that regard in a moment.

446 As I have already indicated,[841] Mr Boston KC, before he came to his responses to the proposed grounds of appeal, acknowledged certain matters concerning VCAT's relevant jurisdiction and powers. However, at the same time, he contended (in relation to HTV's proposed ground 1) that, although VCAT did not have original jurisdiction, it did have review jurisdiction in this matter. As mentioned above, this is a matter upon which there now appears to be common ground.

447 In relation to HTV's proposed ground 1, Mr Boston KC made the following additional points:

(a) that, by virtue of s 35 of the Interpretation of Legislation Act 1984, a purposive interpretation of the PEA is necessary;[842]

(b) that the presently relevant purposes of the PEA are principally those indicated by ss 1 and 4 thereof - including, in particular, s 4(2)(l), which provides that an objective of the planning framework established by the PEA is 'to provide for compensation when land is set aside for public purposes and in other circumstances';[843]

(c) that, accordingly, the Court should be slow to read down the provisions of ss 98 and 99 relating to compensation;[844]

(d) that the word 'disallows' in s 99(a)(iii) of the PEA conveys the idea of declining to intervene in what occurred below or the idea of dismissing an application for review;[845]

(e) that the most relevant of the express powers of VCAT in this matter were those conferred by s 85(1)(e) of the PEA and ss 51(2)(d) and 130 of the VCAT Act;[846]

(f) that in order for VCAT's express powers to be given proper effect, an implied power to disallow an application for review must exist;[847]

(g) that to discern such an implied power accords with well-established legal principles and case law;[848]

(h) that it is also implicit in the review process established by the PEA (in combination with the VCAT Act) that VCAT must have a power to disallow an application for review of a planning condition;[849]

(i) that, even if VCAT did not, in the present case, correctly or comprehensively identify the relevant source or sources of its power to make an order of the kind that it made, nevertheless the abovementioned 'alternative source of statutory power principle' would apply;[850]

(j) that nothing in Rumpf assists HTV - Rumpf related to an objector's application under s 82 of the PEA, not an application by a permit holder under s 80 seeking an order for disallowance as described in s 99 of the PEA. In Rumpf, Balmford J could not have meant that a disallowance order as so described could never be made.[851]

448 Next, Mr Boston KC dealt with HTV's proposed grounds 2(a) and (b), together. He made the following points:[852]

(a) that HTV's allegation in proposed ground 2(a) (namely, that VCAT 'failed to engage with the provisions of s 84B of the [PEA]') was only ever particularised as an allegation that VCAT failed to take into account the new position adopted by HTV at VCAT;

(b) that that particular was, in effect, the same as the substantive allegation set out in proposed ground 2(b);

(c) that the allegation was misconceived, because the new position of HTV was not something covered by s 84B of the PEA at all. HTV's new position post-dated anything that could be picked up by s 84B;[853]

(d) that, as Mr Goubran KC had seemed to concede,[854] VCAT's comment that HTV's new position was 'irrelevant' meant only that it was irrelevant to the matter of whether the conditions in question were 'not acceptable' to Mr Kilpatrick within the meaning of s 99(a)(iii)(B);[855]

(e) that, in any event, VCAT plainly did consider the new position of HTV;[856]

(f) that HTV's allegation that VCAT failed to exercise its powers under s 85 of the PEA is really a repetition of HTV's proposed ground 1 and is wrong for all the reasons already referred to in relation to that proposed ground;

(g) that VCAT was under no obligation to refer expressly to s 85 in its order or reasons;

(h) that the matter before VCAT was really a one issue case;

(i) that HTV led no evidence at VCAT;

(j) that Mr Vorchheimer specifically told VCAT that 'obviously, clearly what we're dealing with here is a very limited review, being a review of conditions. We don't open everything else up';[857]

(k) that there was ample evidentiary material before VCAT to establish that the houses would have to be demolished if the road and railway were built. VCAT had made strong findings of fact accordingly;

(l) that, in any event, HTV has not pleaded any permissible kind of challenge to VCAT's findings of fact on that matter.

449 As to HTV's proposed ground 2(c), Mr Boston KC submitted that there was absolutely no basis for the contention that VCAT should have arrived at a conclusion opposite to the conclusion at which it did arrive. It was well open to VCAT to conclude, as (in effect) it did, that the planning conditions in question should be maintained. VCAT was under no obligation to accept the position advanced by HTV. The cases relied upon by HTV in this regard, namely Ungar v City of Malvern,[858] The Sisters Wind Farm Pty Ltd v Moyne Shire Council[859] and Friends of the Surry Inc v Minister for Planning,[860] had no application in the present case.[861]

450 In relation to proposed ground 3(a), Mr Boston KC submitted:

(a) that Mr Goubran KC had never clearly or properly identified the so-called 'anterior, and necessary, finding' that VCAT allegedly omitted to make, nor the 'anterior step' that VCAT allegedly failed to take;[862]

(b) that, if HTV's intended allegation is that VCAT failed to stand in the shoes of the council in that VCAT allegedly failed to determine whether the conditions contained in the permit should be removed or not, then (putting aside the question whether VCAT was legally obliged to stand in the shoes of the council in that respect) the allegation must fail on the facts. VCAT did effectively stand in the shoes of the council in this regard. It made findings of fact that led it to a conclusion that HTV's position on the conditions was nonsensical and farcical;[863]

(c) that any error by VCAT in perceiving, or spelling out, the statutory pathway to its conclusion was legally immaterial because there is no realistic possibility that the outcome of the matter might have been different had any such error not been made.[864]

451 In relation to proposed ground 3(b), Mr Boston KC submitted:

(a) that the mere fact that HTV did not 'require' the permit conditions to remain was by no means conclusive;[865]

(b) that the question whether the land 'is or may be required for a public purpose' within the meaning of s 99(a)(iii)(B) was an objective question. It did not depend on the subjective opinion of the referral authority;[866]

(c) that that must be so because of the words 'may be' - it will always be an objective question as to whether the land 'may be' required (at some relevant time) for a public purpose;[867]

(d) that, on the evidentiary material before VCAT, it was entirely open to VCAT to conclude that the land 'is or may be required for a public purpose', namely the very purpose for which the land was reserved (the Transport Corridor).

452 As to proposed ground 3(c), Mr Boston KC submitted that, contrary to HTV's case, it was well open to VCAT to conclude that the permit conditions in question were 'not acceptable' to Mr Kilpatrick, because-