Victorian Civil and Administrative Tribunal|2005-07-18|Before: Mr Jason P, Stuart Morris J

Baarmutha Residents Association Inc v Indigo Shire Council (Red Dot) [2005] VCAT 1521 (18 July 2005)

Judicial review of decision to approve development plan - Planning and Environment Act 1987 s 149B - Rural Living Zone - Non-compliance with requirements of Development Plan Overlay - Unreasonableness and irrelevant considerations - Procedural fairness - Impartiality - Deficient hearing.

1 The application for declaratory orders is dismissed.

2 Costs are reserved.

(given orally at the hearing and subsequently revised)

1 On 9 November 2004 the Indigo Shire Council ("the council") endorsed a development plan for the purposes of clause 43.04 of the Indigo Planning Scheme ("the scheme") in relation to land at Fighting Gully Road, Baarmutha. The subject land had an area of 148 hectares and is to the south of Beechworth. The development plan showed the subdivision of the land into 33 rural living lots, having an average area of a little over 4 hectares and a range of 2 to 8 hectares.

2 A number of residents living or owning land nearby to the subject land are concerned about the decision of the council to approve the development plan; and, together with a residents' association, have taken proceedings before the tribunal pursuant to section 149B of the Planning and Environment Act 1987 ("the Act") seeking a declaration that the approval was invalid. This application is resisted by the council. The owner of the land has not sought to contest the application but is presumably content to rely upon the council's submissions.

3 The subject land is contained within a Rural Living Zone pursuant to the scheme. Purposes of this zone include to provide for residential use in a rural environment and to provide for agricultural land uses which do not adversely affect the amenity of surrounding land uses. Another purpose of the zone is to encourage the use and development of land based on comprehensive and sustainable land management practices and infrastructure provision.

4 The use of land for a dwelling in the Rural Living Zone does not require a permit, provided that the lot has an area of 4 hectares. Hence a permit will be required for some of the lots that would be created by a subdivision that accords with the approved development plan.

5 The use of land for animal keeping (other than animal boarding) does not require a permit within the Rural Living Zone, provided that no more than two animals are kept. In the event that more than two animals are kept, or other agricultural pursuits are pursued, the provisions of the scheme require that a permit be obtained. I am informed that the land has been used for animal keeping or grazing for many years. This may mean that existing use rights exist in relation to animal keeping or grazing. However it appears that if any person purchasing a lot created by subdivision in accord with the development plan were to use that land for viticulture, an orchard or some other crop production, then a planning permit would be required.

6 The subject land is also affected by a Development Plan Overlay. The purpose of this overlay is to identify areas which require the form and conditions of future use and development to be shown on a development plan before a permit can be granted to use or develop the land. Clause 43.04-1 specifically requires:

A permit must not be granted to use or subdivide land, construct a building or construct or carry out works until a development plan has been prepared to the satisfaction of the responsible authority.

The approval of such a development plan is significant for two reasons. First, any permit for development must be generally in accordance with the development plan. Second, an application under any provision of the scheme which is generally in accordance with the development plan is exempt from third party participation (see clause 43.04-2).

7 Clause 43.04-3 further provides that the development plan may consist of plans or other documents and may, with the agreement of the responsible authority, be prepared and implemented in stages. It then provides:

•

The land for which the plan applies.

•

The proposed use and development of each part of the land.

•

Any other requirements specified for the plan in a schedule to this overlay.

The relevant schedule is Schedule 5. Clause 2 of this schedule sets out matters that the development plan must describe or identify or provide for. As Gibson DP observed in Marcus Creek Association Inc v Indigo Shire Council [2004] VCAT 2595 at [21], whilst these matters are described as "requirements", a distinction needs to be drawn between those matters which are mandatory and those matters which only need inclusion if they are relevant or are, in fact, proposed. In the present context, it is only necessary to set out two sub-paragraphs of this clause, namely that the development plan must:

•

Identify proposed water supply systems to service residential development on site, by either tanks, water bore, on site dam, community supply pump from rivers or storage's [sic]. The use of dams will require demonstration that site, soil type and location are appropriate. Bore water shall be accompanied by results demonstrating that the water is potable and that supply can be assured

•

Identify proposed water supplies, storage and systems required for fire fighting purposes.

8 On 14 May 2004 application was made to the council for it to approve a development plan in relation to the subject land. The council decided that, before making a decision on the application, it should notify certain persons and give them an opportunity to make submissions. Hence, on 24 May 2004, it forwarded a letter to the owners and occupiers of land generally in the vicinity of the subject land, informing them of the application and how the detail of it may be inspected. It also indicated that it would not decide on the application until 14 days had elapsed from 27 May 2004 and invited submissions. The council said that it would be take the submissions into account before a decision was made.

9 A significant number of persons ("the objectors") availed themselves of the opportunity to make submissions, which were to the general effect that the development plan should not be approved because the proposed development was too intense. The objectors were concerned that the subdivision would inevitably place pressure on available water in the area, particularly that sourced from aquifers. This concern was not principally directed at water that might be consumed by households on the proposed lots but was directed at the various agricultural pursuits which were likely to be pursued on the lots to be created.

10 The council held a public meeting on 12 October 2004 at which the proposed development plan was discussed. A number of persons attended that meeting, some of whom were dissatisfied with the meeting. For example it was said that the council was not responsive to the submissions made by objectors and that the minutes taken of the meeting were not accurate.

11 On 3 November 2004 Mr Peter O'Dwyer, the Manager of Environment and Development Services with the council, prepared a report on the proposed development plan. Although this document is entitled a "delegate's report" (and I will refer to it in this way) it is in truth an officer's report, as the decision on the development plan was to be made by the council. In that report Mr O'Dwyer set out the various matters which the development plan was required to describe, identify or provide for; and, in relation to each such matter, set out how the matter was addressed. It also described the public exhibition and submission process and summarised the submissions that had been made. In the course of discussing submissions about the change in the landscape, Mr O'Dwyer included the following paragraph:

From the perspective of neighbours however the same might not be said as the status quo will change to varying degrees depending upon the location of the objector relative to the development site. Such concerns relate to phenomena that increasingly seeks to challenge change and new development. Such phenomena can variously be described as:- "Not in my Backyard" (NIMBY); "Locally Unwanted Land Use" (LULU); "Not in anyone's backyard" (NIABY); "Build absolutely nothing anywhere near anybody" (BANANA); or "totally oppose any development" (TOAD).

12 A further report was prepared by Mr O'Dwyer before the council meeting which was in the nature of a summary of the delegate's report. Both reports recommended that the draft development plan as submitted be endorsed as an approved development plan.

13 Prior to the meeting one councillor (Councillor Graham) queried the references in the delegate's report to the various acronyms that might be applied to objectors. The Chief Executive Officer replied to this concern, agreeing that these references could have been left out of the report and could, and have, led to some inflammation of the situation.

14 At its meeting on 9 November 2004 the council decided on a motion moved by Councillor Graham not only to endorse the draft development plan for the purposes of clause 43.04 of the scheme, but also:

Prior to any approval of a Plan of Subdivision Council consult with the community as to the detailed conditions to be placed on a permit relating to the development and that this permit and conditions be presented to Council for approval rather than being dealt with under delegated authority.

15 Section 149B of the Act enables a person to apply to the tribunal for a declaration concerning any matter which may be the subject of an application to the tribunal under the Act or anything done by a responsible authority under the Act. Clearly a decision to approve a development plan pursuant to clause 43.04 of the scheme is something done by a responsible authority under the Act. Hence a person may apply to the tribunal for a declaration that the decision of a responsible authority to approve a development plan is invalid.

16 As I observed in Sweetvale Pty Ltd v Minister for Planning [2004] VCAT 38, section 149B of the Act finds its genesis in section 14 of the Planning Appeals Board Act 1980. The intention of the Parliament was to promote a one stop shop in relation to planning matters and to vest in the tribunal a similar power to that possessed by the Supreme Court to judicially review matters arising under the Planning and Environment Act. Hence the nature of the powers possessed by the tribunal in determining an application under section 149B are substantially similar to those of the Supreme Court. The same principles which operate in relation to judicial review of administrative action by a superior court should also operate when the tribunal is exercising this power.

17 Although the initial grounds relied upon by the applicants were wide ranging, four specific matters were identified by Mr Kane of counsel in his oral submissions.

Does the development plan identify matters required to be identified?

18 The first of these submissions relates to whether or not the approved development plan identifies certain matters which are required to be identified. In order to deal with these contentions it is desirable that I set forth the following extract from the development plan dealing with infrastructure and, in particular, with the question of water supply:

Reticulated water and sewerage facilities are not available to the area. The average annual rainfall in this area is in the range of 750 to 1000 mm and should allow each new dwelling, and any outbuildings, to catch sufficient roof run-off to serve each lot. The topography of the site and the lot layout also allows, subject to the Scheme's provisions, a number of the lots to have a dam constructed within the lot boundaries.

The property also has a number of existing dams that can be utilised by the new landowners. A large reliable dam exists where the subject land adjoins the Beechworth Park and this is to be utilised by proposed Lots 1 and 2.

The subject land is known to have to two aquifers, i.e. a high level and a low level aquifer, which can be accessed for stock and domestic use. The opportunities and ability to access these aquifers depends on a number of factors and is not examined as part of this development plan.

In the delegate's report this extract was largely repeated. However the delegate specifically noted that the average annual rainfall in the area is around 890 millimetres and concluded that this will readily provide opportunities for each new dwelling and any outbuildings to catch sufficient roof run off to be held in rainwater tanks to serve each lot. The delegate suggested that 200 square metres of roof catchment would yield an annual average of 178,000 litres.

19 The applicants contend that the approved development plan identifies three water supply systems that are proposed to service the residential development on the subject land, namely water tanks collecting water from roofs, dams and aquifers. They then say in relation to the dams that the development plan does not demonstrate that the site, the soil types or the location are appropriate for the use of dams. In relation to aquifers they say that the development plan is not accompanied by results demonstrating that the water is potable and that supply can be assured. The council responds to these contentions, not by asserting that the development plan contained details of the suitability of the land for dams or details of the sufficiency of aquifers, but by submitting that the development plan identifies tank water only as the water supply system to service residential development on the site. In order to determine this matter, I must consider both the meaning of the first sentence of the relevant requirement and also the content and meaning of the approved development plan.

20 The relevant sentence of the schedule to the Development Plan Overlay that I must interpret requires the plan to identify "proposed water supply systems to service residential development on site". In my opinion, "residential development" on site means development intended for or suited for use for residential purposes. Obviously this would include a dwelling. It is also likely to include the construction of a garden surrounding the dwelling and outbuildings normal to a dwelling. However I cannot agree with the submission made by Mr Kane on behalf of the applicants that the expression includes development for the purpose of some agricultural or horticultural pursuit that is likely to be sought to be carried out on the lots to be created in accordance with the development plan. First, I think that the submission does not give proper emphasis to the word "residential". This is a word that is concerned with the living circumstances of persons, rather than with the way in which land might be used in the course of a commercial or quasi-commercial endeavour. Second, if one has regard to the provisions of the Rural Living Zone to which I have referred earlier, it is apparent that rural pursuits in the nature of horticulture, viticulture and the like require a permit. Hence such pursuits should not be assumed to flow automatically from either the fact that a house exists in a Rural Living Zone or from the subdivision of the land subject to the development plan.

21 Turning to the development plan, I acknowledge that it is expressed in language which lacks clarity. However I think it must be interpreted in this way: the lots to be created by a subdivision consistent with the development plan are to provide for residential use in a rural environment and that residential use is to be serviced with water by rainwater collection on roofs directed to a rainwater tank or tanks. It is true that the development plan refers to the fact that there are a number of existing dams on the land and that, subject to the grant of a permit, new dams might be permitted. But, in my opinion, this reference is not designed to identify dams as a water supply system to service residential development on the site; but is designed to indicate water supply systems that may be able to service the land generally and in particular service some agricultural activity on the land. In forming this view I take into account the fact that dams are rarely used to service residential development with water for drinking or, indeed, washing. I also take account of the context in which the reference to the dams is made - that is, as a type of afterthought. As for the aquifers, the question is clearer. The development plan makes it clear that the ability to access the aquifers depends upon a number of factors which are not examined as part of the development plan. To my mind this clearly infers that the development plan is not stating that aquifers are to be relied upon as a water supply system to service residential development on the site. Hence I cannot accept the contentions advanced by the applicants in relation to the dams or the aquifers.

22 I might add that this interpretation is consistent with the evidence of Robert van de Graaff, an expert soil scientist who provided written evidence on behalf of the applicants. He suggested that a family of four persons required 150L of water per day per capita, which equated to 600L per day or 219,000L/year. He noted that this volume of water could be collected at Beechworth with a minimum roof area of 243 square metres. It is likely that houses and outbuildings erected on lots subject to the development plan would have such an area. Mr van de Graaff in fact suggested that up to 500,000L/year might be harvested by roof collection. His real point was not that roof collection would be insufficient for residential use; but that 6ML/year would be required for horticulture or viticulture on a 4 hectare lot and that this volume was not likely to be harvested by roof collection.

23 The next submission made by the applicants related to the identification of proposed water supplies, storage and systems required for fire fighting purposes. In relation to this matter the development plan stated, relevantly:

Each new dwelling will have to conform with the Country Fire Authority's Design and Siting Guidelines - Bush Fire Protection for Rural Houses and Council's fire fighting precautions policy. These requirements are to be enforced through the issuing of the planning permit for the development. In addition, a number of the lots have existing dams that can be utilised in times of fire emergency.

The reference to council's fire fighting precautions policy can be taken to include the policy contained in clause 22.03-2 of the scheme. This establishes a policy that a water storage of at least 90,000 litres, depending on vegetation cover of the site, should be established, of which 20,000 litres should be permanently set aside for fire fighting purposes. Having regard to the reference in the development plan to the provision of tank water and to the fact that this policy is incorporated into the development plan, it seems to me that it is intended that each lot be provided with a tank, collecting water from roofs, sufficient to satisfy the policy. Hence I am not satisfied that the plan has failed to identify proposed water supplies, storage and systems required for fire fighting purposes.

24 The next contention advanced by the applicants was that the decision of the responsible authority to approve the development plan was unreasonable. I emphasise the limited scope of this ground of legal challenge. In Sweetvale Pty Ltd v Minister for Planning [2004] VCAT 38 at [25] I stated that the hurdle facing a person alleging that a planning permit decision is not open is a high one. More recently, when sitting in the Supreme Court of Victoria in East Melbourne Group Inc v Minister for Planning [2005] VSC 242, I emphasised that when a challenge is based upon unreasonableness it is necessary to understand that an applicant must do more than show that the decision is one which is a poor decision or a decision which is not to be preferred in all the circumstances. Rather this ground of invalidity is reserved for "decisions that, looked at objectively, are so devoid of any plausible justification that no reasonable body of persons could have reached them".

25 In my opinion, this ground of challenge has not been made out in the present case. This is not to say that I agree with the council's decision to approve the development plan. In this proceeding that has not been an issue; and I am not to be taken as agreeing or disagreeing. But it is not enough for the applicants to show that the decision was a poor one; it must be so devoid of any plausible justification that no reasonable body of persons could have reached it. This very high hurdle has not been achieved here. The decision cannot be characterised, to use the language of a judge in another case, the act of a madman who has lost his senses. Hence this ground of challenge cannot succeed.

The council failed to have regard to relevant matters

26 An allied ground of challenge which was relied upon, obliquely, was that the council failed to have regard to relevant considerations. Once again, I am not satisfied that this ground has been made out. As the Court of Appeal explained in Rajendran v Tonkin [2004] VSCA 43 at [20], where there are a wide range of considerations which may be relevant in the sense that a decision maker is entitled to take them into account, it does not follow that the decision maker errs in law if he or she does not take a particular consideration into account.

In many fields of administrative and judicial decision making the range of considerations which are potentially relevant is so broad that decision making would be impossible if every possible factor, which might bear upon the question, was required to be considered as if completing some gigantic checklist.

In the details supporting the application itself, the applicants set out numerous matters which they say the responsible authority has failed to consider. But, even if this is the case, I hold that it has no legal consequence. For a challenge based upon a failure to take into account relevant considerations to succeed, it is necessary, as Mason J pointed out in Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24 at 39-41, to show that the decision maker was bound to take a particular matter into account in making the decision. This has not been shown in this case. In any event, it seems to me that the real complaint of the applicants is not that the responsible authority failed to take into account certain considerations, but, rather, it failed to ascribe proper weight to particular considerations. Let me take what strikes me as the main concern as an example. There is evidence before me that the aquifer in the Baarmutha area is under pressure. Groundwater is a community resource. It is well established that the use of groundwater by some users will have an adverse impact upon other users. This is made very clear in a graphical sense in a diagram attached to the affidavit of Graham Ahrens which is extracted from Groundwater News December 2004. That diagram shows how increased groundwater use causes drawdown, which in turn reduces the availability of groundwater to other persons nearby, or, alternatively, significantly increases the cost of recovering that groundwater. I think it is likely that a decision to zone land Rural Living will ultimately lead to some increase in the number of persons seeking to use the land for horticulture or other intensive farming pursuits, notwithstanding that a permit will be required for such pursuits. Further the approval of the development plan will carry this process to the next step. It is true that further steps are yet required, such as the grant of a subdivision permit and then the grant of permits permitting horticultural uses to be carried out. But experience tells us that one decision tends to lead to the other. Pressures build up which are difficult to resist. Hence it seems to me that the decision to place this land in a Rural Living Zone is likely to increase the pressure on the groundwater resource, which is also likely to have some consequences for neighbouring owners. But, notwithstanding that seems to be the position on the evidence before me, it is not my task to revisit the decision to zone the land Rural Living or to review the approval of the development plan on the merits. Rather my task is confined to making a decision in relation to the lawfulness of the development plan. It was the council, not this tribunal, which was charged with the role of making the decision having regard to the merits of the matter. It was for the council to decide what weight to place on the various considerations, including those related to the aquifer. Hence I do not uphold the contention based upon relevant considerations.

27 The applicants submitted that the council had a duty to deal with the matter using an impartial procedure. It then submitted that the council failed to discharge that duty because Mr O'Dwyer included in the delegate's report language disrespectful of the objectors.

28 In East Melbourne Group Inc v Minister for Planning [2005] VSC 242, at [72], I discussed the presumption in Australian administrative law concerning the duty of a statutory authority to afford procedural fairness to persons who have an interest in a statutory decision. I observed that "it will always be necessary to examine the particular power the subject of challenge to identify whether there is a clear legislative intent to rebut the presumption that the power will be exercised in a manner which is procedurally fair". It is a nice question whether any obligation arises in the present context. However, for present purposes, I propose to assume that the nature of the power in question is one which does attract an obligation for the council to act in a manner which is procedurally fair.

29 Given that assumption, what is the content of such an obligation? Certainly the content of such an obligation would include an obligation to notify affected persons of the fact that consideration was being given to the approval of a development plan and to afford a hearing to those persons, in the sense of permitting them to make submissions which would then be taken into account. I would have thought that the nature of the obligation only required a council to allow for written submissions, although it could, if it wished, go beyond that and hear persons orally. However, in my opinion, the obligation to act in a manner which is procedurally fair should not be taken to include an obligation to act impartially in the same sense that a court or tribunal is required to act impartially. This is because the body exercising the power is an elected council, the members of which are entitled to act by reference to political influences, which may include an allegiance to certain classes of persons or political philosophies or election policies. It is incompatible with a power being vested in a political body for that power to attract a requirement that the body act impartially in the same sense that a court or tribunal is required to act impartially.

30 The applicants submitted that even if the council could be politically partial, this would not apply to officers of the council. I cannot see how such a distinction can be made. Officers of a council are servants of the council and could be engaged so as to reflect the views of the council. Hence I conclude that there was no obligation on the council for either it, or its officers, to be free of bias or predisposition of some sort in relation to the approval of a development plan.

31 In any event, I am not satisfied that the language used by Mr O'Dwyer should be ascribed to the council which made the decision. The fact that Councillor Graham, the councillor who moved the council's resolution adopting the development plan, specifically disapproved of the reference made by Mr O'Dwyer to NIMBYs and TOADs illustrates that the council was its own master. In the circumstances, the council should not be taken to be a mere cipher of Mr O'Dwyer. Further, even if Mr O'Dwyer did make the decision, pursuant to delegation, which is not the case, I would not regard the language he used in relation to NIMBYs and TOADs as breaching any legal obligation which existed in relation to the procedure that was required to be followed by the responsible authority. It must be understood, that at the time that report was written, the consultation process had essentially finished. The report was, in many ways, a response to the submissions. In my opinion, it is open for a person responding to submissions to question their validity, even using strong or colourful language, without breaching a legal obligation in relation to procedural fairness. Whether it was wise for Mr O'Dwyer to use this language is another matter. On this point I have empathy with Councillor Graham's view; but the fact that language has been used which is unwise does not mean that an obligation in relation to procedural fairness has been breached.

Procedural fairness - time to respond to delegate's report

32 Next it was submitted that the objectors should have had a reasonable time to consider the delegate's report and then had an opportunity to make further submissions before the council made its decision. In this respect, it was said that the six days between the delegate's report and the council decisions was insufficient.

33 I cannot accept this submission. An obligation to afford procedural fairness, if it existed, was satisfied by providing persons affected by the approval of the proposed development plan with an opportunity to make submissions and then to have those submissions considered. It did not extend to having a second opportunity to make further submissions in relation to the officer's assessment of the matter. There may be some circumstances where a second opportunity would be required. An example might be where the officer raised entirely new matters which were highly probative and about which the submittors had no opportunity to make a submission. But that is not the present case. The delegate's report reflects the content of the development plan, and comments on this and the submissions. Hence I do not uphold the contention advanced by the applicants in relation to procedural fairness.

34 As no part of the application succeeds, I propose to make an order that the application is dismissed.

Environment Act 1987

Baarmutha Residents Association Inc v Indigo Shire Council

At a glance

Court

Decision date

Before

Source

Judgment (36 paragraphs)

Baarmutha Residents Association Inc v Indigo Shire Council (Red Dot) [2005] VCAT 1521 (18 July 2005)

Parties

Legislation Cited (1)

Cases Cited (1)