Danaher v Whittlesea CC [2019] VCAT 552

Includes 'Industry' (other than Materials recycling, Rural industry, or Transfer station)' as a Section 1 use in Precinct 5, with or without conditions.

Danaher v Whittlesea CC [2019] VCAT 552 | Case summary | Zoe

[16]

In the Table of Uses exhibited as part of Amendment C204, 'Industry'[2] was proposed as a Section 3 use in Precinct 5 - i.e. it was to be prohibited. Most 'Accommodation' uses were also proposed as Section 3 uses in Precinct 5.
Danaher is a significant landowner in Precinct 5 and was a submitter to Amendment C204[3] and to a panel. Danaher's submission sought to soften the restriction on accommodation, and to facilitate mixed-use development (including accommodation) in Precinct 5. Perhaps implicit in this was Danaher's support for the proposed restriction of industry, although his submission did not focus on this.
Following exhibition of Amendment C204, there were various Council reports and resolutions about the Amendment, the referral of submissions to a panel, and a panel hearing and report.
By the time the Council adopted Amendment C204 in September 2018, the Table of Uses had changed from that publicly exhibited in July 2017. In particular, most types of 'Industry'[4] had changed from being a Section 3 use to a Section 1 use in Precinct 5 - i.e. from being prohibited, to not requiring a permit at all.
Appendix A to this decision contains the first four pages of ACZ2, including the Table of Uses. It shows the 'track changes' from the exhibited version to the version supported by the panel and adopted by the Council. The changes highlighted in blue are the changes that primarily affect Danaher.
The process through which these changes occurred forms the subject matter of this proceeding. Danaher alleges, amongst other things, that the Council has changed the amendment other than in accordance with the statutory procedures in the Planning and Environment Act 1987 (P&E Act).
The consequence of this for Danaher is that he was not made aware until two working days before the commencement of the panel hearing of the Council's change, or proposed change, to Amendment C204 to make most types of 'Industry' a Section 1 use in Precinct 5. This was after his lawyers had filed planning and expert evidence in support of his submission. It seems however that other submitters had been made aware of this proposal many months earlier.
It is trite to observe that a change in a proposed zone control, which has the effect of making most forms of 'Industry' a use that does not require a permit at all (rather than being prohibited), is of quite some significance in planning terms. Given the potential for conflict between industry and accommodation, this is particularly the case for Danaher. He is a major landowner in Precinct 5 and aspires to develop his land for mixed-use development. Quite apart from any consideration of the planning merits of those aspirations, he had formulated his submission to Amendment C204 and his expert evidence to the panel based on the publicly exhibited version of the amendment, where the Council was proposing that 'Industry' be prohibited.
Although not exhaustive of the matters that Danaher relies upon, his key complaints allege that:
- the Council failed to comply with s 23 of the P&E Act in the way in which Amendment C204 was changed and/or submissions were referred to a panel; and
- the panel failed to comply with s 24 and/or s 161 of the P&E Act in failing to accord procedural fairness to Danaher.

[18]

Section 39(1) of the P&E Act provides that a person who is substantially or materially affected by a failure of the Minister, a planning authority or a panel to comply with certain specified parts of the P&E Act in relation to an amendment may refer the matter to VCAT for determination.
I accept that, if there has been a failure, Danaher is a person substantially or materially affected by that failure. As I have indicated, he is a significant landowner in Precinct 5, and a submitter in relation to Amendment C204. The Council did not make any significant attempt to support a contrary view.
Section 39 does not provide general relief in relation to all actions or conduct of the planning authority in its processing of an amendment. There must be failure to comply with Division 1, 2 or 3 of Part 3, or Part 8 of the Act. As will be seen, some of the Council's impugned actions in relation to the processing of Amendment C204 are beyond the scope of these provisions. VCAT can only address a defect in a statutory procedure within the specified provisions - e.g. Danaher's allegation of a failure to comply with s 23 of the P&E Act.
Section 39(1) only applies if the affected person refers the matter to VCAT not later than one month after becoming aware of the failure. The Council says that this has not occurred. I will deal with this issue in the next section.
Section 39(1) also applies only to an amendment which has not yet been approved. Here, the Council has adopted Amendment C204 and referred it to the Minister for approval, but it has not yet been approved. By reference to s 39(2), the Minister is automatically a party to the proceeding. The Minister did not participate in the proceeding. VCAT was advised that the Minister will abide the outcome in the proceeding and will not approve Amendment C204 pending that outcome.
As I have indicated, one of Danaher's allegations is that the panel did not accord him procedural fairness. By reference to s 39(3), where there is an alleged failure by the panel, the panel is entitled to make a submission to VCAT. Here, the panel has made a written submission in the form of a statement of grounds (to which I have had regard) but did not otherwise participate in the proceeding[5].
Section 39(4) sets out what VCAT can do in determining a proceeding under this provision. VCAT can make any declaration that it considers appropriate. VCAT can also direct a planning authority or the Minister to refrain from adopting or approving the amendment (or part of it) unless certain specified action is taken.
By reference to other parts of s 39, and relevant case law, VCAT's powers under s 39 are limited. VCAT is essentially looking at whether there has been a defect in certain specific statutory procedures in relation to an amendment that has not been approved, and the steps that might reasonably be taken to address that defect before the amendment is approved. VCAT is not undertaking a review of the merits of the amendment, nor can it vary or substitute a substantive decision made in relation to an amendment.
The parties both referred to my earlier decisions in Coastal Estates Pty Ltd v Bass Coast Shire Council[6] and Lend Lease Apartments (Armadale) Pty Ltd v Stonnington City Council[7]. To the extent relevant, I adopt what I said there in relation to VCAT's powers under s 39. The decision in Lend Lease also has some parallels with the present proceeding in the interpretation of s 23 of P&E Act - i.e. decisions about submissions to an amendment.

[19]

As I have indicated, an affected person must refer the matter to VCAT not later than one month after becoming aware of the failure.
Danaher's key complaint about the way in which Amendment C204 was changed and/or submissions were referred to a panel, arises from Council resolutions of either 6 February 2018 or 1 May 2018. His complaint about the panel failing to accord procedural fairness arises in part from conduct that occurred in June 2018 (in the lead up to, and in the first two days of, the panel hearing), and in part when the panel report was released by email to Danaher on 22 August 2018.
Danaher's application to VCAT was filed on 3 September 2018, less than a month after his receipt of the panel report, but more than a month after other key events.
The Council says that Danaher could have made enquiries about the Council's proposed changes to Amendment C204 that were referred to, expressly or implicitly, in the Council resolutions. However, I accept that Danaher was not formally aware of these changes until a few days before the panel hearing, on or about 20 June 2018, when he received an outline of the Council submissions to the panel[8]. Even at that stage, he was still not fully aware of the process through which the Council had proposed these changes.
Danaher says that his lawyers raised his concerns at the panel hearing. At a practical level, I have some sympathy with Danaher then waiting for the panel report to see whether his concerns had been resolved, before contemplating action at VCAT. On one view, an earlier application to VCAT might have been considered premature - he may not have been substantially or materially affected by a defect in procedure if the substantive issue was capable of being addressed by the panel.
Despite this, for the purpose of s 39(1) of the P&E Act, Danaher had become 'aware' of at least some of the defects upon which he now relies at a time that is more than a month before his VCAT application. On that view, at least part of his application to VCAT is technically out of time.
To cover this eventuality, Danaher made application under s 126 of the Victorian Civil and Administrative Tribunal Act 1998 for an extension of time to commence the proceeding. The Council opposed this application.
To the extent it is necessary to do so, I have decided to extend time under s 26. In doing so, I have had regard to what are known as the 'Hunter Valley' factors[9]. Given what I have set out above, and what will become apparent in these reasons, I consider it fair and equitable in the circumstances to extend time. Danaher can show an acceptable explanation for the delay (i.e. waiting for the panel report to see whether the matter had been resolved). Danaher raised the matter at the panel hearing within days of becoming aware of changes to Amendment C204. He made the application to VCAT within days of receiving the panel report when it became clear to him that the matter was not resolved. As will also be seen, there is merit in the substantive application that Danaher has made to VCAT.
On one view, the Council and other landowners in the Plenty Valley Town Centre have been prejudiced by the delay in the finalisation of Amendment C204. However, the Council had not sought to press its view about the s 39 application being out of time in any interlocutory process, and raised the matter formally only at the final hearing. It has adopted Amendment C204, and the amendment is now with the Minister. The Council could have split Amendment C204 into two parts to facilitate the approval of non-disputed parts of the amendment, but has chosen not to do so. That could still occur. I do not consider that any prejudice to the Council and other landowners outweighs the potential prejudice to Danaher, nor will the delay unsettle established practices in the processing of planning scheme amendments generally, nor create an outcome that is unfair as between the applicant and other persons otherwise in a like position.
The Council says that it will incur significant costs if it is forced to rerun the panel hearing or part of it. But that scenario only arises if the Council is found to have not complied with its governing legislation.
Here also, the Minister is not under a statutory time limit to consider the approval of Amendment C204, with or without changes. Whether there has been an actual delay in the approval of Amendment C204 is therefore perhaps a moot point. The Minister has been content to await the outcome of the proceeding before considering the amendment.
Having decided to extend time under s 126, I turn to the key issues raised for consideration in the proceeding.

[23]

In Lend Lease, the Council resolution under s 23(1) expressly referred all submissions to a panel, and did not attempt to deal with different submissions in different ways. That was sufficient in that case to rule out the possibility that it had pursued either of the remaining options - i.e. changing or abandoning part of the amendment in response to a submission. Here, the situation is far less clear.
The parties also referred me to a more recent decision in Shiel FCP Pty Ltd v Melbourne CC[11]. In that decision, DP Gibson found that s 23 of the P&E Act would not enable a Council to make extensive changes to an exhibited amendment and then refer all submissions to a panel. The referral of all submissions under s 23(1)(b) negated changes being made under s 23(1)(a), as the two options would be mutually exclusive.
DP Gibson also indicated in Shiel that, when all submissions were referred to a panel, the Council could only lawfully change an Amendment after the panel report at the time of adopting the Amendment. That of course would not prevent a Council from taking other proposed changes to an amendment to a panel hearing, and later making those changes at the time of adopting the Amendment, in the separate exercise of the power under s 29(1) of the P&E Act. The Council however has no power to unilaterally change an amendment in the post-exhibition phase, in the exercise of its power under s 23(1). This is consistent with Lend Lease and what I have said above.
The parties before me disagreed on one aspect of the decision in Shiel. DP Gibson found on the facts of the case before her that a Council decision to refer all submissions to a panel and make changes to the exhibited amendment was invalid and of no statutory effect in relation to the purported changes. DP Gibson therefore found that there was no failure to comply with s 23 of the P&E Act, presumably on the basis that the referral of all submissions to the panel was an effective exercise of power under s 23(1)(b), and thereby negated and made ineffective the Council's other purported actions.
I agree with Danaher that this aspect of the decision in Shiel can be distinguished on its facts because, here, importantly, not all submissions were referred to a panel. The Council did different things with different submissions, or parts of submissions. However, to the extent it is possibly relevant in this case, I agree with Danaher that:
- It is not generally VCAT's task under s 39 of the P&E Act to review administrative error[12]. The purpose of s 39 is to allow a defect in procedure to be remedied.
- If it was found here that the Council had, in respect of a particular submission, both changed the Amendment and referred the submission to a panel, or had done neither, that would comprise a defect that could be remedied under s 39.
It follows that the disputed aspect of the decision in Shiel (i.e. the issue of partial invalidity from the time the defective decision was made) does not affect the decision I have reached in this proceeding.

[29]

The 530 McDonalds Road submission also set out nine grounds to support the six requested changes, including the following:
1. The Amendment fails to facilitate innovative development in the proposed Precincts 4(b) and 5 of the Major Activity Centre contrary to State Policy.
It is common ground that there was no other part of the submission relevant to a change in the status of 'Industry'. It is also common ground that there was no part of any other submission dealing with a change in the status of 'Industry' in Precinct 5. The Council relies only on the first requested change in the 530 McDonalds Road submission as the catalyst for that change.
It is relevant to note that:
- The 530 McDonalds Road submission expressly submitted that the amendment should be changed. Section 23(1) of the P&E Act was clearly invoked.
- At face value, the first requested change (i.e. as set out above) sought to maintain the flexibility of land use under the then existing C1Z zoning and the DPO26 overlay. C1Z and DPO26 then applied to part of the land in Precincts 4(b) and 5, primarily south of McDonalds Road. Under the C1Z, 'Industry' was a Section 2 use[14].
Although also in Precinct 5, the Danaher land is north of McDonalds Road and was then (and now) subject to a different zone and overlay - the Commercial 2 zone (rather than Commercial 1), and DPO7 or DPO25 (rather than DPO26). 'Industry' is treated differently in the land-use tables in the two commercial zones. On a plain reading of the 530 McDonalds Road submission, it is not requesting a change to Amendment C204 that directly affects the Danaher land.
The Council produced an affidavit sworn by Andrew Rodda, a town planner of Contour Consultants, representing the 530 McDonalds Road submitter. Mr Rodda deposes to ongoing discussions that occurred with the Council in the period following the lodging of its submission, in an endeavour to resolve issues raised in his client's submission. The affidavit also exhibits a chain of emails that occurred as part of this process.
For present purposes I note that, on 15 September 2017, the Council emailed Mr Rodda with a 'without prejudice' response to its submission. It dealt with the six parts of the submission separately. In relation to the first requested change, the Council responded as follows:

[31]

Attached to the email was a draft amended Table of Uses. In many respects, the table is in a similar (but not identical) form to that now included in Appendix A to this decision. Importantly, it is the first version of an amended Table of Uses that purports to show a change in 'Industry' in Precinct 5 from a Section 3 use to a Section 1 use.
I accept that the Council was at that time doing no more than creating a 'running draft' of possible changes to Amendment C204. However, it evidences that Council officers were, as early as September 2017, working on a change to Amendment C204 to materially change the status of 'Industry' in Precinct 5 from what the Council had publicly exhibited. This was occurring even before the submissions had first been reported to the Council, and without notice to other potentially affected landowners in the precinct.
Given the relatively limited ambit of the 530 McDonald Road submission that I have noted above, the Council appears to be using the opportunity to unilaterally pursue more substantial changes from the exhibited form of Amendment C204 (including in a manner affecting the Danaher land) beyond that requested in the 530 McDonalds Road submission.
At the hearing before me, the Council contended that the 'submission' by 530 McDonalds Road comprised both its initial written submission, and the discussions with Council officers that followed. It therefore contended that the totality of the submission was broader than the initial written submission, and included proposals for a broader change to the land use controls in Precinct 5. The Council therefore contended that its change to the status of 'Industry' as a Section 1 use in Precinct 5 could still be sourced to the 530 McDonald Road submission.
In relation to this:
- Properly construed, I consider that the reference to a 'submission' in Division 2 of Part 3 of the P&E Act is a reference to the initial written submission. That does not prevent ongoing discussions with a submitter, but is difficult to see how an evolving submission that was partly written and partly oral could meet the requirement that a copy of the submission must be available for public inspection, or that it could be clearly referred to a panel.
- In any event, there is nothing in the Rodda affidavit or the exhibited email chain that persuades me that the change to the status of 'Industry' across the entirety of Precinct 5 was a change solely in response to the 530 McDonald Road submission, even though that submitter may have subsequently acquiesced in those broader changes. The Council was itself proposing these broader changes.
It is also interesting to note that, although there is an amended version of the Table of Uses that sets out this change (or proposed change), this document was not reported to the Council at its meetings in October and November 2017, or in February or May 2018.
The chain of emails between Mr Rodda and the Council continued through the time of the two Council meetings in October and November 2018. By mid-November 2018, most issues in the 530 McDonald Road submission had been largely resolved save for its sixth requested change, which sought to delete a Development Contributions Plan Overlay.

[44]

I have mentioned the two earlier Council meetings because they give some context to what occurred when the Council considered the submissions in purported exercise of its power under s 23(1) of the P&E Act.
The matter came before the Council's meeting on 6 February 2018 on a Notice of Motion, without any supporting officer report or documentation in the meeting agenda.
At the meeting, the Council resolved to:
1. Request the Minister for Planning appoint an independent Planning Panel to consider unresolved submissions made in relation to proposed Amendment C204 to the Whittlesea Planning Scheme.
2. Authorise officers to continue discussions to seek resolution of unresolved submissions prior to an independent Planning Panel Hearing, consistent with the strategic intent of the Structure Plan and officer recommendations contained within Item 6.1.5[15] of 21 November 2017 Council Minutes.
3. Make changes to the Amendment documentation to reflect the specific officer recommendations contained within Item 6.1.5 of 21 November 2017 Council Minutes and present the amended Amendment documentation as the preferred form of the Amendment for the purposes of the Panel hearing.
4. Continue to engage with the community regarding the proposed connections to Civic Drive identified in the Structure Plan with the intent to resolve community concerns prior to an independent Planning Panel Hearing.
It is relevant to note that none of the resolutions expressly exercise the power under s 23(1) of the P&E Act at all.
Resolution 1 requests the Minister to appoint a panel to consider 'unresolved' submissions. There is no express referral of any submissions to the panel under s 23(1)(b), although it can perhaps be implied that the Council is referring those same 'unresolved' submissions to the panel. This is important, although it perhaps begs the questions as to what were the 'unresolved' submissions at that time, and what the Council was doing with 'resolved' submissions.
Resolution 3 is to 'make changes to the Amendment documentation' to reflect the specific officer recommendations. As will be seen, I consider that this is different to the Council resolving to actually make changes to the Amendment at that moment in time, under s 23(1)(a).
It will be recalled that the specific officer recommendation in relation to the first request from 530 McDonald Road was to review land use tables with regard to consistency with existing zoning controls, and to refer the matter to an independent panel only 'if required'.

[77]

For the purpose of a proceeding under s 39 of the P&E Act, Danaher is only entitled to relief if he can demonstrate a failure to comply with a relevant provision in Divisions 1, 2 or 3, or Part 8 of the P&E Act. Some of the Council's conduct and actions above, whilst surprising, do not relate to the specific exercise of power under those provisions.
I return then to the wording of s 23. After considering a submission (or part of a submission) requesting a change to the Amendment, the Council must do one of three things:
- change the amendment in the manner requested, or
- refer the submission to a panel, or
- abandon the amendment, or part of the amendment.
There is no suggestion here that the Council has abandoned any part of the amendment, so the issue is really whether, for various submissions or parts of submissions, there has been a change to the amendment in the manner requested, or a referral of the submission to a panel.
Earlier in these reasons, I have used the Transport Victoria submission and the Council's response to it to illustrate that the Council well understood its obligations under s 23(1). For part of the submission, it endorsed a change in the manner requested. For another part, there was an officer recommendation to refer the matter to a panel, although this part was ultimately resolved. Having said that, in the actual documents forwarded to the panel, the 'referral' is confusing as it is made conditional on the matter not being resolved prior to commencement of the panel. It would have been preferable to have the second part of the Transport Victoria submission referred unconditionally to the panel, so as to more clearly comply with s 23 of the P&E Act, with an agreed position taken to the Council if the matter was subsequently resolved. In the present proceeding, nothing turns on this.
In relation to the Danaher submission itself, there is no failure to comply with s 23(1). The submission was accepted as a late submission, and referred in its entirety to the panel. I reiterate that Danaher makes no allegation that there was a failure to comply with s 23 in relation to his submission.
I have come to a different view in relation to the 530 McDonalds Road submission, or more particularly that part of the submission dealing with the submitter's first requested change - to not dilute the development opportunities then available under the C1Z and DPO26.
First, the Council did not abandon Amendment C204, or any part of the Amendment. The option under s 23(1)(c) can be ruled out.
Secondly, the Council did not refer this part of the submission to the panel. The express Council resolution of 6 February 2018 was to request the Minister to appoint a panel, without any clear referral of any submissions at all. Even accepting that the appointment of a panel necessarily implies the referral of submissions, the Council resolution refers only to the consideration of 'unresolved' submissions by the panel. From the email chain between Mr Rodda and the Council, the first requested change in the 530 McDonalds Road submission was resolved at an early stage. If there be any doubt about this, this position is confirmed in the letter that the Council sent to the panel on 8 February 2018, and the attachments to that letter. Unlike some other submissions that were being conditionally or unconditionally referred to the panel, this part of the 530 McDonalds Road submission was shown in the Council's Submission Summary Table with the unequivocal notation: 'This matter is resolved'. The option under s 23(1)(b) can be ruled out.
This leaves the question of whether the Council, either overtly or by default, resolved to pursue the option under s 23(1)(a) of the P&E Act; namely to change the amendment in the manner requested in the submission.
In this regard, the Council resolution of 6 February 2018 is potentially ambiguous. The Council resolved to 'make changes to the Amendment documentation to reflect the specific officer recommendations' and to 'present the amended Amendment documentation as the preferred form of the Amendment for the purposes of the Panel hearing'. As I have said, there were many submissions where the Council officer expressly indicated in the Submission Summary Table that there was a recommended change to parts of the wording of Amendment C204 in the manner requested by the specific submitter. Should the Council resolution be read as actually changing Amendment C204 in each of the requested ways, for the purpose of s 23(1)(a) of the P&E Act? If so, how should that same resolution be interpreted for other submissions where there was no clearly articulated change, but the matter was not otherwise referred to a panel because it was 'resolved'?
Danaher contends, on one view, that the Council did formally change ACZ2 and the Table of Uses in Amendment C204 in response to the 530 McDonalds Road submission, with this being done through the Council resolution of either 6 February 2018 or 1 May 2018. After considering all of the material in context, I do not share this view.
First, the way in which the first requested change in the 530 McDonalds Road submission is dealt with in the Submission Summary Table does not reflect a clear officer recommendation for a particular change to ACZ2 and the Table of Uses that was subsequently endorsed by the Council. The specific officer recommendation in early versions of that table is that a 'review' of land-use be undertaken. The version of the table later forwarded to the panel indicated that the review had by then been undertaken, and the matter was resolved.
Secondly, the Council resolved on 6 February 2018 and 1 May 2018 to 'make changes to the Amendment documentation' to reflect the specific officer recommendations. Whilst Danaher contends that the Council was thereby resolving to change Amendment C204 in response to some submissions, I agree with the Council that the use of the word 'documentation' is significant, as is the balance of wording of each resolution. In context, I consider that the Council was resolving upon the amended and preferred position it would take to the panel hearing, rather than at that point in time actually changing the Amendment, at least in relation to this part of the 530 McDonalds Road submission. This is also what was submitted to me at the hearing as the Council's understanding of what it was doing.
If this view is correct, and the Council did not change Amendment C204 in its resolutions of 6 February 2018 or 1 May 2018, but only resolved upon proposed changes, then this would also rule out the option under s 23(1)(a) having been exercised through those resolutions.
The consequence of all of this is that the Council has not undertaken any of the three alternative options that it must choose between after considering a submission. It has embarked on its own course of action in attempting to resolve the submissions by other means.
This alone leads to a finding that there has been a failure to comply with s 23(1) of the P&E Act in relation to the 530 McDonalds Road submission, through the Council not having properly exercised the power under that provision at all.
This view is not entirely beyond doubt. As I have indicated, there is some correspondence, and some parts of the Submission Summary Table that suggests that the Council was attempting to change Amendment C204 'in the manner requested' in relation to some of the submissions.
Ultimately, it is not necessary for me to resolve this doubt in deciding this proceeding. That is because, even if the Council did change Amendment C204 in its resolutions of 6 February 2018 or 1 May 2018, through a broad change to ACZ2 and the Table of Uses, it did not then have the power to do so. As I have found, these land use changes went well beyond those contained in the first requested change in the 530 McDonalds Road submission, or any other submission, and the change was therefore not 'in the manner requested' in the submission. It still fell outside of s 23(1)(a).
I mentioned earlier that, in Lend Lease, I had indicated that what is actually a change 'in the manner requested' by a submitter may be a matter for a common-sense interpretation. Here, the 530 McDonalds Road submission was specific in its terms. It sought to maintain the flexibility of the existing C1Z zone where, amongst other things, 'Industry' was a Section 2 use. Having regard to the facts and circumstances of Amendment and the particular submission, it cannot be reasonably interpreted as requesting that 'Industry' be made a Section 1 use for land in an existing C2Z zone.
It is possible that the 530 McDonalds Road submission may have been a catalyst for the broader Council review of the Table of Uses that it had exhibited as part of Amendment C204, and that it had discovered anomalies in the table. However, without forming any view about the planning merits of what the Council has done in its subsequent review, the amended Table of Uses clearly goes beyond what was requested in the 530 McDonalds Road submission.
Accordingly, on the alternative view, even if there was a change to the Amendment, there is still a failure to comply with s 23(1) of the P&E Act, in that Council's purported change to Amendment C204 was not in the manner requested in the submission. It was a broader unilateral change to the Amendment being sought by the Council, which the Council did not have the power to make at that time under s 23.
There is perhaps a further alternative to the three options set out in s 23(1) of the P&E Act. It would be theoretically possible for a submitter to withdraw its submission prior to the Council exercising its power under s 23(1), on the basis that the submission was resolved through some other means. From the context of some of the Council resolutions in October and November 2017, deferring consideration of submissions whilst discussions with submitter's continued, this may have been an option seriously entertained by the Council for some of the submissions. However, that is not what has occurred with the 530 McDonalds Road submission, as is evident from the continuing email chain between Mr Rodda and the Council. The 530 McDonalds Road submission had not been withdrawn prior to the Council resolutions in February and May 2018.
I have found that there has been a failure to comply with s 23(1) of the P&E Act in the way in which the Council dealt with the first request in the 530 McDonalds Road submission. The effect of that failure to comply has substantially disadvantaged Danaher in the way in which Amendment C204 was subsequently changed, and the way in which his own submission was subsequently dealt with.
This view is bolstered by some of the matters I will now deal with in terms of the panel process.

[83]

I agree with Danaher that the 'hearing rule' is not fixed, and that all cases in which the principles of natural justice are invoked must depend on the particular circumstances of the case. Cases in support of this proposition include Fairmount Investments Ltd v Secretary of State for Environment[17], as applied in Torrington Investments Pty Ltd v Penny & Ors[18].
Fairness is not an abstract concept. In recent times, this has been stated by the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam as a concern of the law to avoid 'practical injustice'[19].
I have previously considered these issues in the context of the panel hearing in my decision in Winky Pop Pty Ltd v Hobsons Bay CC[20]. I concluded my decision in Winky Pop with a reference to the decisions in Fairmount and Torrington. In Fairmount, Lord Russell expressed a view that natural justice might be considered in the context of whether a person had had a 'fair crack of the whip'. In Torrington, Brooking J. stated that this 'fair crack of the whip' must require some regard to be had to the ordinary men's notion of common fairness and common sense. I again adopt those comments.
I should say that, in circumstances where a body is expressly bound by the rules of natural justice (such as the panel here), the obligations of procedural fairness lie not just with the body conducting the hearing, but also with the parties appearing before it. That requires that a party have reasonable notice of the case that it is required to meet.
In the circumstances of a panel considering an Amendment, one would ordinarily expect that a submitter should be able to take as its starting point the exhibited version of the Amendment. In terms of providing a fair hearing, there is at least an implicit obligation on the planning authority and the panel to provide a submitter with reasonable notice any significant post-exhibition change that may be relevant to that person submission.
In Winky Pop, I had noted that a panel was not required to 'spoon feed' submitters, and that it is incumbent upon submitters to make their own reasonable enquiries about matters relating to an Amendment. I noted there that this depended on the circumstances of a particular Amendment - with there being a continuum between site-specific development proposals and broader strategic or policy reviews. Here, as in Winky Pop, Amendment C204 lies somewhere within this continuum, with the broad strategic review of the Plenty Valley town centre, and specific precinct controls affecting individual submitters.
The Council says that a late submitter such as Danaher was under an obligation to bring itself 'up to speed' with what had already by then occurred in the processing of Amendment C204, and that there was clear notice provided in Attachment 5 of the officer report in the minutes of the October and November 2017 Council meetings that the Council was intending to change the status of 'Industry' in Precinct 5. Danaher's lawyers say that they did generally review the Council reports and resolutions. I agree with Danaher that the reference in the commentary in Attachment 5 upon which the Council relies was neither clear nor effective 'notice', nor formed part of the specific officer recommendations. Moreover, the matter was deferred by the Council at both of the meetings where Attachment 5 was tabled. The proposed change in the status of 'Industry' was not made clear in any subsequent Council report or resolution.
Moreover, the Council was circulating an amended Table of Uses to some submitters, but not others. The Council was also alerting some submitters about competing submissions from other submitters[21]. In the pre-panel phase, the Council was technically under no formal obligation to abide by principles of natural justice as between submitters (save perhaps generally under the local government charter). However, once submissions had been referred to a panel, both the Council and the panel were obliged to provide a level of procedural fairness commensurate with the nature of the matter before the panel.

[86]

At the hearing, the Council presented the Part A submission to the panel (being the document it had previously circulated, albeit late to Danaher).
The Part A submission is primarily a background document outlining the strategic basis for Amendment C204. However, the last four pages are dedicated to 'Issues raised in submissions', and 'Post-exhibition changes to Amendment'.
In relation to the 'Issues raised in submissions':
- The Council submission notes that a summary of the submissions appears in Attachment 3. This comprised an updated Submissions Summary Table. For the first requested change in the 530 McDonald's Road submission, the Council comment is that 'Council understands this matter to be resolved'.
- The Council submission then sets out 10 key issues raised in submissions. The only one of relevance is:
  - land uses in Precinct 4 and Precinct 5, including whether accommodation should be permissible or prohibited use in Precinct 5.
- There is no reference to the change in the status of 'Industry' in Precinct 5 as a key issue for the panel.
In relation to the 'Post-exhibition changes to Amendment':
- The Council submission notes that a summary of recommended changes to the planning document is included as Attachment 4, with a track-changes version of Amendment C204 as Attachment 6.
- Attachment 4 is a table containing about 50 proposed post-exhibition changes. One of these is to make 'Industry (except for Refuse disposal, Rural industry, Materials recycling and Transfer station)' a section 1 use in Precinct 5 and a section to use in other precincts. It is said that this is to more closely align with the existing C1Z and C2Z.
- The proposed change in Attachment 4 is sourced to 'Submission 5 - 530 McDonald's Road and others', although it is not made clear who the others are.
- The Council submission then makes 10 comments about the proposed changes, that correspond with the 10 key issues raised in the previous section of its submission. The only one of relevance is:
  - land uses in Precinct 4 and Precinct 5 are revised to more closely align with existing commercial zones. 'Accommodation' is to remain a prohibited use in Precinct 5 consistent with current controls.
- There is no express reference in the Council submission to the change in the status of 'Industry' in Precinct 5, and how this may impact on other uses such as 'Accommodation'.
The Council also tabled and presented a Part B submission on the first day of the panel hearing. This was the first time this submission was seen by Danaher.
The Part B submission notes that the panel had requested that the Council explain the changes that resulted in the resolution of a particular issue between the submitter and the council. In response to this:
- The Council submission indicates that Submitter 5 - 530 McDonalds Road had requested that ACZ2 be reviewed to ensure that development opportunities currently available under the C1Z and C2Z zones were maintained. This is incorrect. The 530 McDonald's Road did not mention the C2Z.
- The Council submission refers to Attachment 4 to the Part A submission as the response to the 530 McDonalds Road submission, indicating that proposal that 'Industry (except for Refuse disposal, Rural industry, Materials recycling and Transfer station)' would be moved to Section 1 in Precinct 5 and Section 2 in all other precincts.
The Part B submission deals separately with the Danaher submission. The Council's response included that the Council had already made changes to address many of the matters raised, through its response to other submissions. It then stated, somewhat surprisingly:

[95]

Although the issue of procedural fairness is largely to be determined on what occurred in the lead up to the panel hearing, and at the panel hearing, some further context is given to the matter by the panel report. Indeed, Danaher had perhaps optimistically hoped that any defects in procedure would be overcome through a panel report that clearly identified the relevant issues, and dealt with them.
In relation to the panel report, the panel dealt with proposed post-exhibition changes as a threshold issue, in a separate Chapter 4, prior to considering the outstanding submissions. In this regard:
- The panel mis-states the 1 May 2018 Council resolution, by omitting reference to the Danaher submission.
- The panel notes that the Council had notified the submitters of the resolved changes.
- The relevant part of the 530 McDonalds Road submission is paraphrased in Chapter 4 as being to 'retain existing and approved development opportunities'. There is no reference to a change in the status of 'Industry', nor any analysis.
- The recommendation at the conclusion of Chapter 4 includes a small number of recommended changes, none of which deal with this issue. On one view, this is unsurprising as, technically, the 'resolved' submissions had not been formally referred to the panel.
The panel report deals with the 'unresolved' submissions in a separate Chapter 5. In relation to the Danaher submission:
- The panel report indicates that the issue is whether Precinct 5 should be a mixed-use precinct with accommodation uses. In its discussion of the issue, the panel starts with an acknowledgement that Council seeks to retain industrial and commercial land uses in Precinct 5.
- The panel does not record anywhere that the exhibited form of the Amendment that is before it shows 'Industry' as a Section 3 use, and that the Council is seeking to materially change that starting point. The panel appears to proceed on the opposite basis.
- There is no discussion about the status of 'Industry' in the Table of Uses.
- The panel's conclusion, amongst other things, is that without proper strategic planning, there is likely to be conflict and interface issues between residential and industrial land uses, and that Amendment C204 should not enable accommodation in Precinct 5.
For completion, I note that the panel report includes a Chapter 6 dealing with the form and content of the Amendment. In Chapter 6:
- The panel report notes the revised ACZ2 with track-changes provided by the Council that reflects changes that respond to issues raised in submissions.
- The panel report notes that the revised ACZ2 also included 'considerable changes' to the Table of Uses to correct land-use terminology which reflect what was intended for different precincts. It notes that:

[101]

Having considered what has happened, I return to whether there has been a failure to comply with ss 24 and 161 of the P&E Act. Again, some of the Council and panel actions, whilst questionable, do not fall squarely within these provisions.
As I have indicated, s 24 of the P&E Act requires that the panel must consider all submissions referred to it and give a reasonable opportunity to be heard to any person who was made a submission.
Danaher's contention is that the panel erroneously considered the Amendment itself, rather than the particular submissions referred to it. It also contends that the panel did not 'properly' consider the Danaher submission from its correct starting point; namely the exhibited form of Amendment in which 'Industry' was shown as a Section 3 use.
Whilst there is some evidence of this, I do not believe that this amounts to a failure to comply with s 24. It is implicit that, in fulfilling its obligation to consider submissions, a panel will necessarily consider aspects of the Amendment itself. Moreover, what Danaher is alleging here is a more substantive administrative law error, which falls beyond the remit of s 39 of the P&E Act[22].
Strictly speaking, the panel has complied with its obligation under s 24 of the P&E Act. There is no evidence that the panel did not consider all of the unresolved submissions formally referred to it, nor deny anyone the opportunity to be heard. In relation to Danaher specifically, he was heard in relation to his submission - in particular about his quest to remove the restriction on Accommodation, and to enable mixed-use development in Precinct 5.
I take a different view in relation to s 161. The panel is bound by the rules of natural justice, and is therefore bound to accord procedural fairness, and to ensure that procedural fairness occurs between parties. The consequence of this is that the Council was also bound to accord procedural fairness to other parties within the panel process, including Danaher.
It will be apparent from the foregoing discussion that I consider that Danaher was denied procedural fairness in the way in which he received late notice of the Council's proposed changes from the exhibited form of Amendment C204, the way in which his submission was dealt with at the panel hearing, and the way in which his complaint was dealt with on the second day of the panel hearing. Some of this did not manifest itself until it became known that the panel had not dealt adequately with the relevant issues in its report.
In saying this, I would not want it to be thought that the panel acted in any way in bad faith. Having regard to all of the background material, and with hindsight, the panel was itself misinformed (through the confusing way in which the Council had referred submissions and presented its material) about the potential significance of the change in the status of 'Industry' in Precinct 5 from what had been exhibited, and its impact on Danaher and his submission. In my opinion, this led to an error of judgement by the panel, but an error that nonetheless led to a denial of procedural fairness to Danaher.

[102]

I have found that there has been a failure to comply with ss 23 and 161 of the P&E Act in a manner that establishes a defect in procedure for the purpose of s 39 of the Act.
It therefore falls to determine the appropriate remedy.
The factual account that I have given of what happened in the Council's consideration of submissions and referral of 'unresolved' submissions to a panel perhaps reveals a number of defects in procedure in relation to a number of submissions (i.e. over and beyond the first requested change by 530 McDonalds Road). There are also other unilateral changes that the Council has proposed to make to Amendment C204. However, no other party seeks to rely on any other alleged defects, nor to seek relief in relation to them. I therefore propose to limit the remedy to one that addresses the specific non-compliances that Danaher has raised in this proceeding.
In some cases, the remedy provided by VCAT is to effectively 'roll back' the process to the point where the defect occurred, and to recommence the process from there. In the context of a wide-reaching Amendment, such as Amendment C204 (relating to a structure plan for the whole of the Plenty Valley Town Centre), such a course of action would potentially lead to significant expense and delay way beyond the adverse impact that has been caused to Danaher. Accordingly, I am not minded to grant relief that would require a reconsideration of all submissions, or a complete rehearing of all submissions by the panel across all precincts.
I am also conscious of the fact that, for better or worse, the Council has now adopted Amendment C204 with changes, and the Amendment is now with the Minister. Given what I have just said about the wide-reaching nature of Amendment C204, I am not minded to grant relief that would undo the adoption of the Amendment if that can be avoided.
It is nonetheless the case that I believe Danaher is entitled to have his submission reconsidered in light of what has occurred. In reality, that requires him to be given the opportunity to make a fresh submission about the change to the status of 'Industry' in Precinct 5 (and its consequences for mixed-use development and Accommodation uses). Although not a party to this proceeding, the submitter 530 McDonalds Road Pty Ltd would likely be affected by this process, as might be other landowners in Precinct 5.
Although the Minister has not yet considered the Amendment, the Minister is a party to this proceeding and has agreed to abide its outcome.
In my opinion, the Minister provides the most expedient mechanism through which the earlier defects in procedure can now be remedied. In particular:
- The Minister has power under s 33 of the P&E Act to direct a planning authority to give notice of any changes to the amendment that the planning authority has made when adopting the amendment. This would enable the Minister here to direct the Council to give further notice to landowners in Precinct 5 about the changes made to the status of 'Industry' in the Council's adopted form of Amendment C204.
- The Minister also has power under s 34 of the P&E Act to allow submissions resulting from such notice, and to refer those submissions to a panel, with the panel to hear submissions and report its findings to the Minister. The Minister can then consider whether or not to approve Amendment C204, with or without changes, based on those further submissions and a further panel report that deals specifically with the relevant issues (i.e. the change in the status of 'Industry' in Precinct 5 and its potential impact on other land use in the precinct).
I have therefore made orders to this effect.
Significantly, the Minister also has power under s 35 to separate an Amendment into parts. This would enable the Minister, if so minded, to split Amendment C204 into parts. This could facilitate the exercise of the Minister's powers under ss 33 and 34 in relation to the specific issues that affect Danaher (as one part of Amendment C204), whilst at the same time approving other important parts of Amendment C204 that are unaffected by Danaher's issues.
In conclusion, I wish to reiterate that nothing in this decision should be read as expressing any view on the ultimate planning merits of how 'Industry' should be finally dealt with in Precinct 5, or the specific planning merits of the Danaher submission in relation to Amendment C204 as exhibited.

At a glance

Court

Decision date

Source

Judgment (123 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (2)

Danaher v Whittlesea CC [2019] VCAT 552 (18 April 2018)