East Melbourne Group Inc v Minister for Planning & Anor [2008] VSCA 217

2 Section 20(4) of the Act provides:

The Minister may exempt himself or herself from any of the requirements of sections 17, 18 and 19 and the regulations in respect of an amendment which the Minister prepares, if the Minister considers that compliance with any of those requirements is not warranted or that the interests of Victoria or any part of Victoria make such an exemption appropriate.

3 By way of s 8(2), the Minister is a planning authority under the Act.

4 Section 19(5) of the Act was altered after Amendment C101 was approved and adopted. At the relevant time, ss 17, 18 and 19 of the Act provided:

17 Copies of amendment to be given to certain persons

(1) A planning authority must give copies of any amendment it prepares to a planning scheme together with the explanatory report and any document applied, adopted or incorporated in the amendment -

(a) to a municipal council, if the amendment applies to its municipal district; and

(d) to any other person whom the Minister specifies.

(2) A planning authority must also give a copy of any agreement entered into under section 173 to any person to whom it gives a copy of the amendment if the agreement or part of the agreement will not come into operation fully unless the amendment comes into operation.

The planning authority that prepared an amendment and any person who is given a copy of an amendment under section 17(1)(a) or (c) must make the amendment, the explanatory report, any document applied, adopted or incorporated in the amendment and any accompanying agreement available at their respective offices during office hours for any person to inspect free of charge until the amendment is approved or lapses.

1. What notice of an amendment must a planning authority give?

(1) A planning authority must give notice of its preparation of an amendment to a planning scheme -

(a) to every Minister, public authority and municipal council that it believes may be materially affected by the amendment; and

(b) to the owners (except persons entitled to be registered under the Transfer of Land Act 1958 as proprietor of an estate in fee simple) and occupiers of land that it believes may be materially affected by the amendment; and

(c) to any Minister, public authority, municipal council or person prescribed; and

(ca) to owners (except persons entitled to be registered under the Transfer of Land Act 1958 as proprietor of an estate in fee simple) and occupiers of land benefited by a registered restrictive covenant, if the amendment provides for the removal or variation of the covenant; and

(d) to the Minister administering the Land Act 1958 if the amendment provides for the closure of a road wholly or partly on Crown land.

(1A) Subject to sub-section (1C), the planning authority is not required to give notice of an amendment under sub-section (1)(b) if it considers the number of owners and occupiers affected makes it impractical to notify them all individually about the amendment.

(1B) A planning authority which does not give notice under sub-section (1)(b) for the reasons set out in sub-section (1A) must take reasonable steps to ensure that -

(a) public notice of the proposed amendment is given in the area affected by the amendment; and

(b) that notice states that owners and occupiers of land referred to in sub-section (1)(b) are entitled to make submissions in accordance with sections 21 and 21A.

(1C) Sub-section (1A) does not apply in relation to the giving of notice to an owner of land of an amendment which provides for -

(a) the reservation of that land for public purposes; or

(b) the closure of a road which provides access to that land.

(2) A planning authority must publish a notice of any amendment it prepares in a newspaper generally circulating in the area to which the amendment applies.

(2A) A planning authority must cause notice of an amendment providing for the removal or variation of a registered restrictive covenant to be given by placing a sign on the land which is the subject of the amendment.

(3) On the same day as it gives the last of the notices required under sub-sections (1), (2) and (2A) or after all other notices have been given under this section, the planning authority must publish a notice of the preparation of the amendment in the Government Gazette 15.

(a) be given in accordance with the regulations; and

(b) set a date for submissions to the planning authority which, if notice of the preparation of the amendment is given in the Government Gazette, must be not less than one month after the date that the notice is given in the Government Gazette.

(5) The failure of a planning authority to give a notice under sub-section (1) does not prevent the adoption of the amendment by the planning authority or its submission to or approval by the Minister.

(6) Sub-section (5) does not apply to a failure to notify an owner of land about the preparation of an amendment which provides for -

(a) the reservation of that land for public purposes; or

(b) the closure of a road which provides access to that land.

(7) A planning authority may take any other steps it thinks necessary to tell anyone who may be affected by the amendment about its preparation.

5 The plaintiff at first instance and the appellant in this appeal is East Melbourne Group Inc, an association representing residents in the East Melbourne area. The first defendant at trial and first respondent to these proceedings is the Minister for Planning. The second defendant and second respondent is PCH Melbourne Pty Ltd ('PCH'), the owner of the land directly affected by Amendment C101.

6 At the hearing before the trial judge, the appellant submitted that the Minister's decision in relation to Amendment C101 was invalid. The appellant also submitted that the Minister's subsequent exemption under s 20(4) of the Act was invalid because it was based upon the proposition that the development authorised by Amendment C101 would be completed by March 2006 so as to provide accommodation for visitors attending the Commonwealth Games. The appellant submitted therefore that Amendment C101, 'is and was invalid, void and of no lawful effect.' The trial judge rejected the appellant's prayer for a declaration to this effect.[1] The appellant now appeals.

7 Amendment C101 was essentially concerned with three properties in East Melbourne: the Hilton Hotel, the MCG Hotel and Mosspennoch House. These properties are all owned by the second respondent, PCH. In 2001, PCH applied to the City of Melbourne for a permit under the Melbourne Planning Scheme for the redevelopment of the MCG Hotel, which adjoins the Hilton Hotel site to the east but is contained within the same title. Amongst other matters, permission was sought to build a 13 storey building with 60 apartments. The City of Melbourne refused that application.[2]

8 PCH appealed to the Victorian Civil and Administrative Tribunal ('Tribunal'). On 3 May 2002, the Tribunal refused PCH's appeal because, in light of the applicable zoning and overlay, the proposed building overwhelmed the surrounding properties.[3] However, the Tribunal was not outright in its rejection of the proposal and PCH amended some aspects of the project so as to address the Tribunal's concerns. Having forwarded their amended proposal to the appellant in March 2004, PCH reapplied to the Melbourne City Council for a permit. The proposal included, inter alia, plans to demolish the rear of the MCG Hotel and construct a 15 storey building comprising 89 apartments.[4] On 6 August 2004, the Melbourne City Council gave notice of the application to persons affected[5] and, in response, 25 objections were lodged.

9 An officer of the City of Melbourne assessed the amended proposal and considered that, inter alia, it did not comply with the objectives and requirements of the Melbourne Planning Scheme. Furthermore, the proposal did not comply with an amendment, Amendment C93, that was under consideration at the time. If introduced, the proposed Amendment C93 to the Melbourne Planning Scheme would have imposed a 24 metre height restriction on the relevant land.[6] Clearly, a 15 storey building would have stood above this height. Despite the existence of a report by the relevant officer to this effect, the City of Melbourne did not positively reject the amended proposal at this point, instead withholding its decision. On 19 November 2004, PCH applied to the Tribunal with respect to the failure by the City of Melbourne to make a decision within the prescribed time period. The matter was listed by the Tribunal for hearing in February 2005. However, for reasons that will become evident, that hearing did not take place.

10 In addition to the process of applying for a permit to develop and use the relevant land in the manner proposed, PCH sought the Minister's approval to amend the Melbourne Planning Scheme so that a permit would not, in fact, be necessary for the development to proceed. The Minister decided that an amendment was required and consequently purported to amend the Melbourne Planning Scheme by adopting and approving Amendment C101. The exercise of statutory power conferred under s 20(4) of the Act, culminating in the purported amendment, is the subject of this appeal.

11 The trial and appeal were concerned with a number of documents relating to the Minister's decision under s 20(4) of the Act. Those documents and circumstances surrounding their creation are summarised below.

12 By letter dated 13 October 2004, Mr Dan Kolomanski, the Victorian Development Director of PCH's parent company, Thakral Holdings Ltd ('Thakral'), wrote to the Minister for Planning. The letter initially sets out the extensive investments Thakral has made in Australia and Victoria, especially in its 'East Melbourne assets'. Mr Kolomanski notes:

Thakral has dedicated significant financial resources and a senior development team to East Melbourne without achieving any reasonable prospect of being able to improve these assets to achieve their full potential ...

In order to maintain the 5 star standard of the Hilton Hotel, we will be required to expend at least $15 million on a major refurbishment, together with a $40 million expansion of residential accommodation and refurbishment of the adjacent MCG Hotel. We also propose to invest a further $20 million on the adjacent historic Mosspennoch property to restore it to its former glory and residential use, and to complete the development of the car park area adjacent to the Hilton on the Park.

13 Mr Kolomanski then notes the 'continual decline' of the Hilton Hotel's net operating profit and capital value since Thakral assumed ownership of it. Importantly, he also states:

With many Commonwealth Games events to be held at the adjacent Melbourne Cricket Ground, Flinders tennis complex and Olympic Park [athletic] complex, it is vital that we commence works without delay if we are to have the Hilton on the Park fully refurbished and operational for the Melbourne Commonwealth Games in 2006.[7]

14 Mr Kolomanski then summarises the planning procedures that PCH have undergone up until that time and is critical of height restrictions proposed over the MCG Hotel land in Amendment C93. He concludes the letter stating:

Without the assistance of the State Government in maintaining and enhancing the Hilton-on-the Park Hotel and the MCG Hotel, we will have no choice but to review our investment/disinvestment options to stem the continued capital losses. One very real option is the cessation of the Hilton on the Park in its current form and the redevelopment and orderly disposal of these assets.

Hilton Hotels are a world renowned brand and the withdrawal of such a powerful and respected brand from the Melbourne market would be a regretful but necessary commercial decision by Thakral, a major blow to the 328 hotel employees and approximately 1400 employees in support and service industries and to the standing of Victoria in the international business community.

We believe that our East Melbourne land holdings, including iconic buildings such as:

• The MCG Hotel (formerly Parade Hotel @ 1853) where the rules of Australian Rules Football are widely believed to have been originally penned;
• Mosspennoch House originally built in 1881; and
• The Hilton on the Park Hotel

represent a site of State significance warranting the intervention of the State Government to ensure that these assets are preserved and enhanced, particularly with many 2006 Commonwealth Games events to be held at the adjacent Melbourne Cricket Ground, Flinders Park tennis complex and Olympic Park athletic complex.

15 Mr John Phillips, the Manager of Development Approvals for Central City and Alpine in the Department of Sustainability and Environment, deposed on affidavit that, on or about 19 October 2004, he was asked to advise the Minister on the letter.[8] Mr Phillips also deposed that, on 18 November 2004, he attended a meeting with two senior government officers from the Department of Industry, Innovation and Regional Development. Thakral's letter of 13 October 2004 was discussed at that meeting. Mr Phillips deposed that the two senior government officers 'advised me that they had been advised by Thakral that the refurbishment of the Hilton Hotel could be completed before the Commonwealth Games'. Mr Phillips also stated that, on 26 November 2004, he attended a meeting with Mr Kolomanski and one Mr Kevin Love, the Deputy Secretary of the Department of Sustainability and Environment. Mr Phillips explained the meeting as follows:

Mr Kolomanski explained Thakral's proposed refurbishment and re-development of the Hilton Hotel, and the restoration of the MCG Hotel and Mosspennoch House, and put Thakral's case for Government intervention to allow these projects to proceed without further delay. In particular, Mr Kolomanski told me that intervention was required if the refurbishment of the Hilton Hotel was to be completed before the staging of the Commonwealth Games.

16 Later that day, Mr Phillips authorised a briefing document (the 'First Briefing Note') which was prepared by a Senior Project Planner at the Department of Sustainability and Environment. This document comprises a five page ministerial briefing with a handwritten date on the front page of 1 December 2004. The exhibit reveals that the purpose of the briefing is 'to brief the Minister in relation to Amendment C93 to the Melbourne Planning Scheme (currently being exhibited) which proposes to introduce mandatory height controls across parts of Melbourne'.

17 The document begins with a recommendation that the Minister

agree that the Acting Deputy Secretary - Built Environment, write to the Chief Executive Officer of the City of Melbourne, with regard to Amendment C93 to the Melbourne Planning Scheme, to put a DSE [Department of Sustainability and Environment] position generally in accordance with the attached table 1 of this brief.

18 The exhibit did not attach a copy of Table 1 referred to in the document. The document goes on to provide the history of key sites covered by Amendment C93, namely the Hilton Hotel and MCG Sites on Wellington Parade, and Mosspennoch on Clarendon Street. The section contains the following statement:

Thakral Holdings Ltd, the owners of the Hilton and MCG Hotels and Mosspennoch sites, have recently written to you expressing their concern with the planning process of refurbishing and redeveloping the sites. Thakral Holdings Ltd believes this matter warrants the intervention of the State Government to ensure that these assets are preserved and enhanced, particularly with many 2006 Commonwealth events to be held at the adjacent MCG, Melbourne Park tennis complex and Olympic Park Athletic complex. The Department is consulting with other parts of government on the strategic significance of this proposal.

19 A section entitled 'issues' generally recommends against mandatory height controls in favour of retaining discretionary height controls and goes on to provide more specific detail in relation to particular issues. The following is stated under the sub-heading 'Hilton & MCG Hotel':

Given the redevelopment of the Hilton building is unlikely, the introduction of mandatory height controls is not considered appropriate and lacks strategic merit. [The Tribunal] has stated that the Hilton has an opportunity to be developed in accordance with a set of built form outcomes. The current Thakral Holdings Ltd application (Peddle Thorp [A]rchitects), which is massed against a high blank wall of 48.5 metres and steps down to the west is considered an appropriate response to the site and its context by providing a built form transition from 14.4 metres, to 45 metres.

20 There is provision in the document for the Minister's decision to agree or disagree to the recommendation and provision for her signature, however, the document was not signed by the Minister. Mr Phillips' affidavit states that the 'briefing was returned unsigned by the Minister'.

21 On 30 November 2004, Mr Phillips received a phone call from Ms Melinda Catlow, a town planner with Contour Consultants Australia ('Contour'). Thakral had retained Contour in relation to its request for an amendment to the Melbourne Planning Scheme. Contour wished to prepare draft documents for the proposed scheme amendment which were to be considered by Mr Phillips.

22 On 7 December 2004, Mr Phillips met with Ms Catlow and Mr Kolomanski to discuss Contour and Thakral's preparation of these documents. Later that day, so as to provide Contour with an example of what was required, Mr Phillips emailed Ms Catlow copies of documents used for previous amendments of the scheme. The relevant exhibit does not include the attachments of the email, specifically, the copies of documents used for previous amendments of the scheme referred to in Mr Phillips' affidavit. Also on that day, Mr Kolomanski sent Mr Phillips a copy of documents relating to the 'permit application made by Thakral to the [Melbourne City] Council in June 2004 for the redevelopment of the Hilton Hotel'.

23 On 8 December 2004, Thakral provided Mr Phillips with draft project schedules for the Melbourne Planning Scheme. The schedules showed the proposed development of the MCG Hotel, the restoration of Mosspennoch House, the building of apartments adjacent to Mosspennoch House and the refurbishment of the Hilton Hotel. The schedule indicated that, with the exception of the refurbishment to the Hilton Hotel, the development would be completed in the last quarter of 2006. The refurbishment of the Hilton Hotel, on the other hand, was to be completed in March 2006.

24 On 9 December 2004, Mr Phillips met once again with Mr Kolomanski and Mr Love to discuss the proposed amendment. The timing of the refurbishment and redevelopment of the Hilton Hotel was also discussed at this meeting. Mr Love asked Mr Kolomanski what undertakings Thakral could give the Victorian Government if the Minister were to approve the proposed amendment. Also on 9 December 2004, Ms Catlow emailed Mr Phillips further draft documents with respect to the proposal.

25 On 10 December 2004, Mr Phillips received a revised project schedule for the Hilton Hotel refurbishment. This indicated that the refurbishment would take 145 days to complete, finishing on 14 December 2005. Mr Phillips received other draft documents on that day: a draft of the Minister's reasons for using the power of intervention under s 20(4) of the Act, an explanatory report for the amendment as well as a draft of a document to be incorporated into the Melbourne Planning Scheme.

26 In response to Mr Love's enquiry of 9 December 2004 as to what undertakings Thakral could give the Victorian Government, Thakral wrote to Mr Love by letter dated 10 December 2004. The letter states:

Thakral wishes to support the 2006 Commonwealth Games by refurbishing the 5 star Hilton-on-the Park Hotel and increase the capacity with longer stay suites and apartments to be constructed over the Ballroom. The new apartment style facilities will be linked directly into the main hotel at levels 2 and 3. The majority of apartments will be sold subject to management agreements. The proceeds of the sales will be used to fund the refurbishment of the Hilton-on-the Park and the MCG Hotel.

The MCG Hotel will be refurbished and the façade faithfully restored as a priority project. It is expected to be open for Christmas 2005. The MCG Hotel will be themed to continue its long association with Australian Rules Football, where it is widely believed that the first rules of the game were drafted in the [sic] May 1859.

Thakral Holdings Limited, subject to the final approval of the Board, is prepared to give the following undertakings to the Government of Victoria. The undertakings are subject to Thakral being granted all necessary and timely development/construction approvals consistent with Planning Permit Application TP04/0638 to the Melbourne City Council (in full) prior to 1 January 2005:-

1. To refurbish and maintain operation of the Hilton on the Park, using its best endeavours to complete the refurbishment of the hotel prior to the 2006 Commonwealth Games. The Management Agreement currently in place with Hilton Hotels of Australia Pty. Ltd. and Hilton International is valid up to 1 April 2034, subject to usual commercial conditions. The on-going operation of the Hotel would be subject to maintenance of commercial returns acceptable to Thakral;
2. To refurbish and restore the MCG Hotel in accordance with the aforementioned Planning Permit Application TP04/0638 and to facilitate the on-going operation of the MCG Hotel subject to maintenance of commercial returns acceptable to Thakral;
3. To restore Mosspennoch House, in accordance with plans and specifications approved by Heritage Victoria by way of permit, for conversion to 6 residential apartments which would be offered for sale to the public.

28 Also on 10 December 2004, Mr Kolomanski emailed Mr Phillips (amongst the several documents he received that day) a draft elevation of a new building described as 'Mosspennoch Stage 2.' Mr Kolomanski stipulated that the elevation was 'just an illustration and subject to a lot more design and consultation'.

29 On 11 and 12 December 2004, with these various documents from Thakral in hand, Mr Phillips prepared a draft of a document entitled 'Planning Scheme Amendment Report' as well as a briefing note for the Minister (the 'Second Briefing Note').

30 On 13 December 2004, Mr Phillips sent the draft of the Planning Scheme Amendment Report to Ms Catlow for review. On 14 December 2004, Ms Catlow obtained counsel's advice on the content of the proposed amendment and forwarded it to Mr Phillips.

31 On 14 December 2004, Mr Phillips settled the various briefing documents. In his affidavit, Mr Phillips deposed that he forwarded to the Minister the Second Briefing Note, the Planning Scheme Amendment Report and what Mr Phillips referred to as the 'associated documents'. These documents will be discussed in turn below.

32 The purpose of the Second Briefing Note was to brief the Minister in relation to the proposed amendment, that is Amendment C101, which was

to facilitate the redevelopment and refurbishment of the Hilton on the Park Hotel and adjoining heritage buildings, by approving a section 20(4) amendment under [the Act] to approve a site specific exclusion - 'Incorporated Document', in the [Melbourne Planning] Scheme as a matter of State significance with reasons given for the intervention in the planning system.

33 The document goes on to state that the Minister had 'recently been briefed on Council's exhibited Amendment C93 to the [Melbourne Planning] Scheme'. It also summarised an attached 'agreed height strategy'[9] stating, 'the redevelopment and refurbishment of the Hilton on the Park Hotel including the MCG Hotel would be the subject of a site specific amendment'. The document also explains that a planning permit application (Application TP04/638) was made to the City of Melbourne for an almost identical scheme as proposed for approval under Amendment C101 and lists the details common to both the permit application and Amendment C101. Later, Amendment C101 is summarised with the relevant portion stating:

the amendment ... insert[s] a new document titled 'Hilton on the Park Hotel Complex Redevelopment, December 2004', which facilitates the integrated redevelopment and refurbishment of the hotel and adjoining heritage buildings and ... makes the Minister for Planning the responsible authority for the 'Hilton on the Park Hotel Complex Redevelopment'.

34 The document goes on to list how the proposed development and amendment achieves the relevant planning policies and discusses local amenity issues, Heritage Victoria comments and consultation with key parties. On the final page, the document contains reference to the letter from Thakral to the Minister dated 10 December 2004:

Thakral Holdings Limited, owners of the Hilton on the Park Hotel, MCG Hotel and Mosspenoch site have made undertakings to the Government, by letter dated 10 December 2004 (see attached) to refurbish and restore the existing hotels and Mosspenoch House and maintain the operation of the Hilton on the Park Hotel, using its best endeavours to ensure the refurbishment is completed before the 2006 Commonwealth Games.

35 The document concludes with a recommendation that the Minister agree to prepare, adopt and approve Amendment C101 under s 20(4) of the Act and that the Minister should so approve the proposal by signing the document. Furthermore, the document recommends that the Minister sign the Statement of Reasons prepared in accordance with the Ministerial Powers of Intervention in Planning and Heritage Matters Practice Note ('Practice Note').

36 The Practice Note was issued in November 2004 by the Department of Sustainability and Environment and applies to Ministerial powers of intervention including that conferred by s 20(4) of the Act. The Practice Note states that it

sets out circumstances in which the Minister will consider exercising those powers of intervention and the principles that will apply in considering a request for the intervention so that the use of intervention powers is both transparent and accountable.

37 It also provides that, in using powers of intervention, the Minister will

make publicly available written reasons for each decision, including an explanation of how the circumstances of the matter responded to th[e] Practice Note and the legislative criteria for that action;

provide a report to Parliament at least every twelve months detailing the nature of each intervention.

38 The Practice Note is not prepared pursuant to a statutory power and is advisory only. In particular, it does not constitute a direction made by the Minister for Planning under ss 7(5) or 12(2)(a) of the Act.[10]

39 The Planning Scheme Amendment Report is a completed pro forma document. The relevant sections of the document state as follows:

The amendment is required to facilitate the refurbishment and redevelopment of the Hilton on the Park Hotel and surrounding properties and restoration of the historic MCG Hotel and Mosspennoch House, to enable their commencement and or substantial completion in time for the Commonwealth Games in 2006 ...

The Amendment will facilitate the timely extension and upgrading of significant accommodation facilities in close proximity to key Commonwealth Games venues, will protect and enhance buildings of historic or cultural heritage interest and will improve the environment for Victorians and visitors to Victoria.

40 In response to the question '[o]ther documents to be signed?' the following is specified: '[r]easons for decision to use the power of intervention under the Ministerial Powers of Intervention in Planning and Heritage Matters Practice Note'. The document repeats the recommendations made in the Second Briefing Note and was signed by Mr Phillips on 14 December 2004.

41 There were six 'associated documents'. The first is a document entitled, 'Incorporated Document, "Hilton on the Park Hotel Complex Redevelopment December 2004"' ('Incorporated Document'). The document contains written provisions and a series of 67 maps marked 'Hilton on the Park Hotel Redevelopment - TP100, December 2004'. The following statements appear on one of the maps: 'existing Hilton Hotel tower to be refurbished internally'; 'rear of MCG Hotel to be demolished'; and 'front of MCG Hotel to be retained and restored'. Other maps detail the proposed new building works.

42 The Incorporated Document provides for the Hilton Hotel and Mosspenoch sites to be developed and used in accordance with the specific controls contained in the document. The purpose of the site specific control is described as follows:

To facilitate the redevelopment and expansion of the Hilton on the Park Hotel Complex as tourist accommodation in a timely manner in order to be available for the Commonwealth Games.

To encourage urban design solutions which recognise the significance of Wellington Parade as a boulevard entrance to Melbourne Central Activities District and the importance of the heritage buildings on the land.

43 The document also provides for the use and development of the land to be undertaken in stages. The approval contained in the document is stated to expire if one of the following circumstances applies (unless the periods referred to are extended by the responsible authority):

The refurbishment of the Hilton on the Park Hotel is not commenced by 1 October 2005.

The restoration of the MCG Hotel is not commenced by 1 October 2005.

The development is not completed by 31 December 2008.

44 The second associated document is entitled, 'Melbourne Planning Scheme, Amendment C101, Explanatory Report' ('Explanatory Report'). It states:

The amendment is required to facilitate the refurbishment and redevelopment of the Hilton on the Park Hotel and surrounding properties and restoration of the historic MCG Hotel and Mosspenoch House, to enable their commencement and or substantial completion in time for the Commonwealth Games in 2006 ...

The [a]mendment implements the objectives of planning in Victoria by implementing the relevant parts of Melbourne 2030, the SPPF [State Planning Policy Framework], LPPF [Local Planning Policy Framework] and MSS [Municipal Strategic Statement]. The Amendment will facilitate the timely extension and upgrading of significant accommodation facilities in close proximity to key Commonwealth Games venues, will protect and enhance buildings of historic or cultural interest and will improve the environment for Victorians and visitors to Victoria ...

The economic and social benefits resulting from the amendment are substantial and include:

The provision of a five star hotel proximate to the MCG and Commonwealth Games venues in time for the commencement of the Commonwealth Games, enhancing the range of accommodation available to visitors of Victoria ...

Does the amendment make proper use of the Victoria Planning Provisions?

The amendment utilises the site specific provisions which are intended for proposals that do not fit the general provisions. The urgency of the project and its value to the State in the provision of facilities for the Commonwealth Games warrant the use of these provisions.

45 The third and fourth associated documents are entitled 'Melbourne Planning Scheme, Amendment C101', and 'Melbourne Planning Scheme, Amendment C101, List of Changes to the Melbourne Planning Scheme'. They provide the formal mechanism for amendment of the Planning Scheme and list the provisions to be amended.

46 Mr Phillips deposed that he was aware that an important element of the proposed development was the internal refurbishment of the Hilton Hotel. However, the refurbishment did not need to be specified in Amendment C101 or in the Incorporated Document because no permission to refurbish was required under the Planning Scheme having regard to the definition of 'development' in s 3 of the Act.

47 The fifth associated document is a single page entitled 'Notice of Approval of Amendment to a Planning Scheme - to be presented to Parliament'. The following statement appears: 'The amendment make[s] changes to [Schedules to the Melbourne Planning Scheme] ... to insert [the Incorporated Document], which facilitates the integrated redevelopment and refurbishment of the hotel and adjoining heritage buildings'.

48 The final associated document entitled 'Melbourne Planning Scheme, Notice of Approval, Amendment C101' is similar in its terms to the fifth associated document and contains the statement quoted above from that document.

49 The Minister followed Mr Phillips' advice by signing the Second Briefing Note on the day it was forwarded to her, 14 December 2004. On that day, she also executed or approved the following documents:

1 A document entitled, 'Ministerial Powers of Intervention in Planning and Heritage Matters, Melbourne Planning Scheme Amendment C101, Reasons for Decision to Use Power of Intervention' ('Statement of Reasons');[11]

2 The associated document entitled 'Incorporated Document, "Hilton on the Park Hotel Complex Redevelopment December 2004"';

3 The associated document entitled 'Melbourne Planning Scheme, Amendment C101, Explanatory Report';

4 The associated document entitled 'Melbourne Planning Scheme Amendment C101';

5 A document entitled 'Decision to Prepare an Amendment';[12]

6 A document entitled 'Preparation of Amendment';[13] and

7 A document entitled 'Adoption of Approval under Section 20(4)'.[14]

50 The Statement of Reasons contains the following relevant passages:

The Minister for State and Regional Development in a letter dated 14 December 2004 has requested the Minister for Planning to amend the Melbourne Planning Scheme under the powers pursuant to Section 20(4) of the Planning and Environment Act 1987 (the Act), to facilitate the redevelopment and refurbishment of the Hilton on the Park Hotel site, East Melbourne ...

The purpose of the amendment is to ... insert [the Incorporated Document] ... which facilitates the integrated redevelopment and refurbishment of the Hilton on the Park Hotel and adjoining heritage buildings, MCG Hotel and Mosspennoch House site ...

The construction of the new accommodation and upgrade of the existing accommodation will involve an investment of approximately $86 million dollars [sic] and will have substantial positive flow-on effects for the Victorian economy.

The hotel refurbishment will be completed in time for the 2006 Commonwealth Games to be hosted in Melbourne.

51 The document discusses planning permit TP04/638 to the City of Melbourne 'for an almost identical scheme' and lists the details common to both the permit application and Amendment C101. The document continues:

The combined development plans will enable significant quality accommodation to be provided in close proximity to the prime Commonwealth Games venue at the MCG. It is a site that warrants comprehensive plans for retention of heritage components and built form infill.

The proposed expansion of the Hilton on the Park Hotel and the refurbishment will also ensure the quality accommodation is provided in a timely manner to accommodate the demands anticipated for the Commonwealth Games.

On this basis, the development is considered to be of genuine State significance which raises a major issue of State policy and public interest.

52 Consultation with interested parties is then discussed and the following is stated:

A number of meetings have been held with residents from East Melbourne throughout the current planning permit application process. The general public has not been consulted in respect to this amendment and the intervention.

53 Under the heading 'Reasons for Intervention' the document states that the proposed development and amendment achieves the policies of the Metropolitan Strategy - Melbourne 2030 and the Municipal Strategic Statement - City Plan, and is consistent with the State Planning Policy Framework. Reasons are given as to why this is so. The document then continues:

I am satisfied that the proposed development and the amendment raises a major issue of genuine State significance and public interest and will have significant effects beyond the immediate locality. The second and third matters set out under Criteria 1 of the Practice Note are satisfied for the following reasons: ... The hotel refurbishment will be completed in time for the 2006 Commonwealth Games to be hosted in Melbourne. In turn this facility will raise the image and profile of Melbourne and improve the backdrop to the MCG and the sporting precinct surrounding ...

Given the Hilton on the Park Hotel redevelopment project contributes to the accommodation offer available in Melbourne for the Commonwealth Games in a timely manner, I believe it is necessary to avoid delays which may result from the giving of notice, by exempting the project from the provisions of the Melbourne Planning Scheme.

54 The document concludes with extracts from the Practice Note of criteria met by the proposal.

55 Whilst in his affidavit Mr Phillips does not explicitly state that this document was put to the Minister, the reference to it in the Second Briefing Note presupposes that it was, in fact, put before the Minister at this time.

56 On 16 December 2004, Amendment C101 was given effect by a notice of approval for which Mr Love arranged gazettal. On 17 December 2004, Mr Phillips wrote to Mr Kolomanski advising Thakral of the approval of Amendment C101.

57 On the same day, the Minister released a media release set out in full below:

One of Melbourne's most famous sporting pubs, the MCG Hotel, will become a shrine to the birth of Australian Rules Football under a $86 million redevelopment package involving three sites in East Melboure, the Minister for Planning, Mary Delahunty, announced today.

'The MCG Hotel has long been a traditional watering hole for a post-game beer or two, but even in sports-mad Melbourne, few people realise that this site can be considered the birthplace of Australian Rules Football,' Ms Delahunty said.

'At this location in 1859 some of football's pioneers first wrote down and formalised the rules of the game, laying the foundation for Melbourne's world-famous contribution to sport,' she said

'This package will see this historic site will get the recognition it deserves and become a shrine to the development of our national football code.

'The hotel, built in the early 1860s to replace a timber structure where historians believe the football rules were first documented, will be fully and authentically restored.

'The MCG Hotel will continue to be a place of pilgrimage for sports fans as a theme pub with memorabilia and sporting displays that celebrate the birth of AFL football.'

Ms Delahunty said she had approved a site specific planning scheme amendment to permit the $86 million package of construction projects involving the Hilton on the Park Hotel and surrounding historic buildings, also owned by Hilton owners Thakral holdings Limited.

The hotel refurbishment will be completed in time for the Melbourne 2006 Commonwealth Games and will provide much-needed tourist accommodation right on the edge of Melbourne's sporting precinct

The package includes the restoration of the MCG Hotel and construction of a 15 storey apartment and retail building behind it; the refurbishment of the Hilton on the Park Hotel to preserve its five-star status; and the restoration of historical Mosspennoch House in Clarendon Street as part of a 12 apartment complex.

'This is an exciting development that will inject $86 million into the Victorian economy, create more than 1100 construction and permanent on-site jobs and strengthen central Melbourne's role as a tourist and entertainment destination,' Ms Delahunty said.

'It has been carefully designed so that it will respect East Melbourne's neighbourhood character, its heritage buildings and the historic Fitzroy Gardens,' she said.

'The new 15-storey building behind the MCG Hotel will be 45 metres high, 20 metres lower than the 65 metre high Hilton building. The tallest parts of the new building will adjoin the blank side wall of a neighbouring 53 metre high office tower, next door to the Hilton, and it will step down to four storeys where it joins the Hilton tower podium section.

'This design will ensure that the new building does not unduly overlook or overshadow the neighbourhood, and that it is not too visually intrusive in this sensitive location.'

Ms Delahunty said she had approved Amendment C101 to the Melbourne Planning Scheme to permit the development and had used her ministerial power of intervention to exempt the amendment from the requirement under the Planning and Environment Act to give public notice of the decision.

'This decision is in line with the Ministerial Powers of Intervention in Planning and Heritage Matters Practice Note. I am satisfied that the proposed development and the amendment raise a major issue of genuine state significance and public interest, and that it will have significant effects beyond the immediate locality,' she said.

'Approval of this amendment means that work can start early next year, ensuring that this project will be finished in time for the 2006 Games.'

58 On 11 February 2005, East Melbourne Group Inc commenced an action by writ in the Supreme Court of Victoria seeking declaratory relief, in effect, by judicial review of the Minister's decision to exempt herself from notice requirements and adopt and approve Amendment C101.

59 The learned trial judge considered two main contentions raised by the plaintiff. First, whether the Minister's decision to exempt herself under s 20(4) of the Act was invalid because it was made on the basis that the development authorised by Amendment C101 would be completed by May 2006, that is, in time to provide additional accommodation for the Commonwealth Games. Secondly, whether the Minister's decision was invalid due to a failure to comply with the rules of procedural fairness before exempting herself from notice requirements.

60 In relation to the first contention, the plaintiff alleged that the Minister's decision was occasioned by Wednesbury unreasonableness,[15] took into account irrelevant considerations and was motivated by an improper purpose. The plaintiff contended that these errors constituted a vitiating error in the exercise of the Minister's power under s 20(4) of the Act.

61 The development authorised by Amendment C101 included the construction of a 15 storey building adjacent to the Hilton Hotel containing 89 apartments. The appellant argued that if the Minister relied on the proposition that the development would be completed by March 2006, in time to provide accommodation for the Commonwealth Games, then her decision was unreasonable. The appellant submitted that this proposition was so unrealistic, due to the timeframe, that no rational minister could have made such a decision.

62 The first respondent submitted that the proposed works were divided into a number of stages, one of which was the refurbishment of the Hilton Hotel, another was the construction of the new apartment building. The refurbishment element could reasonably be regarded as being able to be completed in time for the Commonwealth Games and would therefore contribute to the accommodation available.

63 The appellant submitted that if this was so, the Minister took into account an irrelevant consideration - namely a commercial consideration of a private character - in deciding to invoke the powers conferred upon her by s 20(4). The appellant also contended that the Minister's decision was motivated by an improper purpose. This, the appellant argued, arose because Amendment C101 amounted to an approval of a development which required planning permission in exchange for an undertaking by the second respondent to carry out refurbishment works for which no planning approval was required.

64 The learned trial judge held that if the Minister's decision to exempt herself from notice requirements was based on the proposition that an abbreviated process was justified to enable additional accommodation to be available for the Commonwealth Games, then the decision was 'so devoid of plausible justification that no reasonable Minister would have taken that course'[16] because no rational Minister could have believed the works would be completed in time.

65 However, after considering all the evidence his Honour concluded that this was not the only reason for the Minister's decision. The trial judge looked to the public documents explaining the exercise of the Minister's powers (that is, the official justification for the decision) and certain departmental documents to discern the real reasons for the Minister's decision. His Honour took into account the following public documents: Amendment C101, the Explanatory Report, the Incorporated Document, the Statement of Reasons, and the Minister's media release. He also had regard to the following departmental documents: two letters from the parent company of the second respondent dated 13 October 2004 and 10 December 2004 respectively, and the Second Briefing Note.

66 His Honour concluded two main purposes of the Minister's exercise of powers to approve Amendment C101 without notification. First, to put PCH in a position where it could proceed without the normal scrutiny involved in a planning appeal hearing. This was determined on the basis that the Minister took the view that the development was economically important to the State of Victoria and she wished to promote it by making the development approval more certain. Secondly, to facilitate the refurbishment of the Hilton Hotel in a timely manner for the Commonwealth Games.

67 The trial judge concluded that the aforementioned purposes were not so devoid of any plausible justification that no reasonable Minister could have reached them, and were, therefore, not occasioned by Wednesbury unreasonableness. Furthermore, his Honour held that the appellant's case did not establish where irrelevant considerations or improper purposes came into play in the Minister's decision making process.

68 In the Further Amended Notice of Appeal, the appellant sought two declarations: first, that Amendment C101 was invalid, void and of no lawful effect; and, secondly, that those parts of the Melbourne Planning Scheme as purportedly amended by Amendment C101 are, and were, invalid, void and of no lawful effect.

69 The second respondent filed a Notice of Contention upholding his Honour's decision by reason of s 39(7) of the Act,[17] or alternatively, that the proper exercise of the Court's discretion to make orders on judicial review would dictate that the appellant's claims be dismissed.

1 the trial judge erred in failing to find that the Minister was bound by the official reasons for her decision;

2 the trial judge erred in finding that the contents of the departmental documents could change or colour the Minister's official reasons;

3 the trial judge erred in according the public documents the status of political 'spin', as opposed to the true reasons for the Minister's decision;

4 the trial judge erred in finding that the Minister read, or was aware of, the contents of the departmental documents because:

(a) the trial judge concluded that the Minister relied on the contents of the second respondent's letter dated 13 October 2004, having previously found there was no evidence that the Minister had read that letter;

(b) the trial judge found that the Minister relied upon the contents of the second respondent's letter dated 10 December 2004 in the absence of any or any proper evidence upon which such a finding could be based;

5 the trial judge erred in finding that the departmental documents revealed that the refurbishment of the existing hotel was the only part of the project which the second respondent undertook to complete prior to the commencement of the Commonwealth Games; and

6 if a real reason for the Minister's decision was to enable the refurbishment of the Hilton Hotel, the trial judge erred by finding that the exemption was valid in the absence of a direct connection between Amendment C101 and the refurbishment.

71 The first three grounds essentially turn on whether the trial judge erred in having regard to, and the approach taken to, departmental documents and public documents to determine the reasonableness of the Minister's decision. The fourth and fifth grounds of appeal concern findings of fact (including asserted inconsistent findings) made by the trial judge in relation to the departmental documents. The sixth ground asserts there was error arising from the lack of a nexus between the amendment exempted under s 20(4) of the Act and approval of the relevant project. I will discuss these issues in turn below.

72 Wednesbury unreasonableness is found where the decision was so unreasonable no reasonable person could have come to it;[18] namely, the discretion has been abused.[19] In determining the reasonableness or unreasonableness of the Minister's decision, the learned trial judge had regard to what he described as 'public' and 'departmental' documents.[20] The appellant essentially contended that the Minister was bound by the reasons given in the Statement of Reasons and that the trial judge erred in taking into account the departmental documents.

73 In certain review processes a superior court may take account of any material before it.[21] Generally, a court reviewing a decision on the grounds of unreasonableness may consider material before the decision maker at the time of the making of the decision.[22] It will be an issue, as here, whether the materials were before the decision maker.

74 The appellant cited authority that the Court is not permitted to take into account 'additional evidence' in examining reasons for a decision where that evidence materially alters the reasons given. However, the cases cited do not reveal an absolute prohibition on the admissibility of additional evidence.[23]

75 The English Court of Appeal decision in R v Westminster City Council; Ex parte Ermakov ('Ermakov')[24] provides a basis for examining the law in relation to additional evidence to support reasons for administrative decisions. Hutchison LJ (with whom the Court agreed) declined to admit additional evidence on the basis that it fundamentally altered or contradicted the original reasons provided. His Lordship held that additional evidence could be admitted in limited circumstances to elucidate correct or add to official reasons, but not to fundamentally alter or contradict them.

76 The English position was further considered by Burnton J in R (on the application of Nash) v Chelsea College of Art and Design ('Nash').[25] After reviewing the relevant authorities, including Ermakov, his Honour made the following observations:

(i) Where there is a statutory duty to give reasons as part of the notification of the decision, so that ... 'the adequacy of the reasons is itself made a condition of the legality of the decision', only in exceptional circumstances if at all will the Court accept subsequent evidence of the reasons.

(ii) In other cases, the Court will be cautious about accepting late reasons. The relevant considerations include the following, which to a significant degree overlap:

(a) Whether the new reasons are consistent with the original reasons.

(b) Whether it is clear that the new reasons are indeed the original reasons of the whole committee.

(c) Whether there is a real risk that the later reasons have been composed subsequently in order to support the tribunal's decision, or are a retrospective justification of the original decision. This consideration is really an aspect of (b).

(d) The delay before the later reasons were put forward.

(e) The circumstances in which the later reasons were put forward. In particular, reasons put forward after the commencement of proceedings must be treated especially carefully. Conversely, reasons put forward during correspondence in which the parties are seeking to elucidate the decision should be approached more tolerantly.

77 Subsequently, in R (on the application of Ashworth Mental Hospital) v Mental health Review Tribunal for West Midlands and North West Region ('Ashworth Mental Hospital'),[26] Burnton J accepted that this observation was expressed too widely and that, as a general rule, evidence that merely elucidates original written reasons will be permitted regardless of whether the reasons are required by statute. The distinction made in Nash between statutorily and non-statutorily required reasons was, however, maintained.[27]

78 Nash has not been considered by the courts in Australia in this context.[28] Ermakov has been considered twice in Australia, by Eames J of the Supreme Court of Victoria on both occasions. In Herald & Weekly Times v Correctional Services Minister ('Herald & Weekly Times'),[29] his Honour considered a request by a journalist, an employee of the plaintiff newspaper, to visit a prisoner at Barwon Prison to interview him for a newspaper article. The defendant refused the request stating the reasons in a letter to the plaintiff and referring to a draft 'media protocol' published by the defendant some months prior. The media protocol stated that interviews would not be considered with persons imprisoned for the category of offence of which the subject prisoner was guilty. Nevertheless, in affidavit evidence the decision maker expressed that this did not reflect the approach taken and outlined the range of considerations to which she had regard in refusing the request.

79 Eames J held that the affidavit containing the additional evidence amounted to an expansion or elucidation of the reasons stated in the letter, not a fundamental alteration to the original reasons.[30] Therefore, in keeping with the principles in Ermakov, it was permissible to have regard to them in the appeal.

80 Eames J considered Ermakov on a second occasion in Walker v Registrar of Titles,[31] a case concerning reasons provided by the defendant in refusing to register a body corporate plan. Broader reasons were provided for the refusal by affidavit and in both written and oral submissions. His Honour held that 'the range of considerations and arguments advanced by the registrar, to a degree at least, went beyond the terms of the reasons for decision which [the decision maker] had delivered to the plaintiffs'.[32]

81 Whilst not explicitly outlining the breadth of the original reasons in comparison with the additional reasons, his Honour held that the latter merely elucidated, rather than fundamentally altered the former. Thus, his Honour had regard to the additional material.

82 For present purposes Ermakov must be distinguished for several reasons. First, the departmental documents do not fundamentally alter or replace the official reasons. The learned trial judge held that the public documents put a gloss or 'spin' on the real basis for the decision, possibly to avoid or minimise public criticism.[33] His Honour concluded there were two reasons for the Minister's decision to exercise her powers under s 20(4):

the main purpose was to put PCH in a position where it could proceed with the expansion of the Hilton Hotel without having its proposal subject to the normal scrutiny involved in a planning appeal hearing ... [the] second purpose [was] that the approval would facilitate the refurbishment of the Hilton Hotel in a timely manner for the Commonwealth Games.[34]

83 The public documents may indeed put a gloss or 'spin' on the reasons for the decision, however, this does not amount to a fundamental alteration or contradiction. Rather, it simply amounts to a change in the presentation or focus of the reasons. Indeed, careful reading of all the departmental documents and the official reasons reveal a strong consistency in approach. The differences are not of substance but largely style.

84 Ermakov must also be distinguished on a second basis. The relevant Act in that case created a statutory obligation to give reasons, a factor given decisive weight by the Court which held that in situations where reasons were required by statute and no reasons or wholly deficient reasons were provided the appellant was, prima facie, entitled to have the decision quashed.[35] There was no allegation of unreasonableness. Rather the appeal concerned compliance with the statutory requirement to provide reasons and whether the reasons supplied were deficient or could be altered by new and contradictory evidence.

85 On the present facts there is no statutory obligation for the Minister to give reasons. The Statement of Reasons was prepared in response to the Practice Note issued by the Department of Sustainability and Environment. This document provided that, in using the powers of intervention, the Minister would make written reasons for each decision publicly available.[36] A deficiency in the Minister's official reasons would not result in their being defective in an Ermakov sense.

86 The third, and most important distinction between Ermakov and the present case is that, in Ermakov, the additional evidence was affidavit evidence brought into existence after the decision had been made. It was, therefore, not before the decision maker at that time. This is a critical difference.

87 The analogy drawn by counsel for the appellant between departmental documents and 'additional evidence' is incorrect. The departmental documents are not additional evidence, brought into existence after the decision was made, which contradicts the decision maker's unambiguous reasons,[37] amounts to a fundamental alteration to the original reasons,[38] or introduces entirely new grounds for the decision. [39] They are documents that existed prior to the decision being made by the Minister.

88 Similarly, the contention that a division must be made between public documents which may be taken into account, and departmental documents which may not is, in the factual circumstances here prevailing, artificial. A distinction between departmental and public documents is not relevant to determining the process of reasoning behind the Minister's decision.

89 The merits of the Minister's decision itself are not in issue here, rather it is the legality of that decision to which a court undertaking judicial review must direct its enquiry. It is therefore necessary to examine the process by which the Minister arrived at her decision to determine if the power conferred by s 20(4) was validly invoked and the decision was reasonable. Thus, a more appropriate distinction to draw is between evidence that was before the decision maker, and was thus relevant to the decision being made, and evidence that was not. It was this distinction which the learned trial judge made. His Honour concluded that, as a matter of logic, all evidence which is relevant should be considered.[40] On this basis, his Honour looked to the public documents explaining the exercise of the Minister's powers, then considered those departmental documents relevant to the Minister's decision.

90 The distinction between factors that were taken into account by the decision maker and factors that were not has been recognised by the courts. In R (on the application of Richards) v Pembrokeshire County Council ('Pembrokeshire'),[41] Neuberger LJ held that the admissibility of additional evidence turns on whether the decision maker themselves took the evidence into account. In Attorney-General for the Northern Territory v Minister for Aboriginal Affairs,[42] Lockhart J stated:

In the case of some grounds of review (for example, if the decision maker failed to take into account a relevant consideration) ... or took into account an irrelevant consideration ... it is difficult to see the relevance of material not before the decision maker. Other grounds of review (for example, unreasonable exercise of the power ...) will generally, lead to the evidence consisting primarily of the material before the decision maker.

91 This passage was cited with approval by Weinberg J in Australian Retailers Association v Reserve Bank of Australia[43] and Sackville J in McCormack v Commissioner of Taxation.[44] In Herald & Weekly Times, the question of whether to admit affidavit evidence to elucidate reasons turned on whether the evidence was taken into account by the decision maker. Eames J held:

If I concluded that these were indeed relevant considerations, and that they had been taken into account at the time but had, for whatever reason, not been identified to the applicant at the time, then there would be an air of unreality if I was to disregard those considerations.[45]

92 On the present facts, the learned trial judge was required to determine the reasonableness of the Minister's decision. To undertake this enquiry, it was necessary for his Honour to have regard to the information before the Minister to ascertain the basis for her decision. To say that only the publicly available documents should be incorporated into an assessment of the Minister's decision is to disregard substantial information that was before her in making that decision. We are not looking here at the reasonableness of the decision in the mind of a member of the public, but the reasonableness of the decision that the Minister made based on the evidence before her.

93 The learned trial judge was permitted to look to the departmental documents if those documents were relevant and taken into account by the Minister when making the decision. The task of the trial judge was not to determine whether the Minister's decision was right or wrong, but whether it was reasonable. In this respect, the departmental documents were of assistance. In any event, before the trial judge, the appellant put the departmental documents into evidence,[46] opened at trial by reference to those documents,[47] and conceded that the majority of the departmental documents were before the Minister at the time of the impugned decision.[48]

Were all of the departmental documents considered by the learned trial judge before the Minister?

94 On the basis that the learned trial judge was correct in considering the documents that were taken into account by the Minister in making her decision, it is now necessary to turn to the question of whether the documents that the trial judge considered were before the Minister at that time.

95 In clarifying whether all of the departmental documents were before the Minister at the time of the decision, it is to be observed that the Second Briefing Note was signed by the Minister and refers to the 'attached' letter dated 10 December 2004. At trial, the appellant conceded that it should be inferred that the letter was in fact attached to the Second Briefing Note.[49] The appellant's ground 4(b) thus falls away. It is not disputed that these two documents were in the mind of the Minister at the time of the decision. The First Briefing Note and the letter dated 13 October 2004 are, however, another matter.

96 In his affidavit, Mr Phillips deposed that on or about 19 October 2004 he was asked (by whom is not stated) to advise the Minister in relation to the requests by the respondent included in the letter dated 13 October 2004. In response, on 26 November 2004, he authorised a briefing document to the Minister, the First Briefing Note.[50] This document included the following reference to the letter of 13 October 2004:

Thakral Holdings Ltd, the owners of the Hilton and MCG Hotels and Mosspenoch sites, have recently written to you expressing their concern with the planning process of refurbishing and redeveloping the sites. Thakral Holdings Ltd believes this matter warrants the intervention of the State Government to ensure that these assets are preserved and enhanced, particularly with many 2006 Commonwealth events to be held at the adjacent MCG, Melbourne Park [T]ennis complex and Olympic Park Athletic complex. The Department is consulting with other parts of government on the strategic significance of this proposal.

97 The purpose of the First Briefing Note was to brief the Minister on Amendment C93 to the Melbourne Planning Scheme which proposed to introduce mandatory height controls in some areas. Mr Phillips deposed that the document was returned unsigned by the Minister. At trial, counsel for the appellant conceded that the First Briefing Note was put before the Minister.[51] It was therefore reasonable for the learned trial judge to conclude that the Minister read or was aware of the document and to consider it as being relevant to the Minister's decision.

98 Moving to the letter dated 13 October 2004, the question of whether or not the Minister read or was aware of this document was not raised at trial. The document was exhibited to the affidavit of Mr Phillips and the affidavit of Ms Margaret Ann Wood, President of East Melbourne Group Inc. The document was exhibited to Ms Wood's affidavit to dispute claims made in it concerning the resources available to East Melbourne Group Inc and the reaction of residents at a public meeting presenting concept plans for the site. Nevertheless, the appellant read almost the entire letter into evidence during its opening[52] and did not raise the issue of whether or not the Minister read or was aware of the letter.

99 Parties on appeal are bound by the conduct of their case at trial.[53] The appellant cannot now argue that the trial judge erred in concluding that the Minister read or was aware of the letter, when the letter was addressed to the Minister personally, date stamped as received by her office on 15 October 2004, and the issue was not raised at trial. If the issue had been raised at trial, the respondents would have had the opportunity to address it at that time. To allow it now would offend the principle in Whisprun Pty Ltd v Dixon.[54]

100 I do not accept the appellant's submission that the approach of the learned trial judge to this letter demonstrates inconsistency. The appellant argued that his Honour concluded that the Minister relied on the contents of the letter of 13 October 2004 after having held that there was no evidence that the Minister had read the letter. This description of his Honour's reasoning is not accurate. His Honour stated, '[t]here is no evidence as to whether the Minister for Planning read the PCH letter of 13 October 2004. However the Minister's department was clearly aware of the letter.'[55] His Honour later held that the letter was relevant to explaining the Minister's decision and included it in his consideration of the departmental documents.[56] His Honour did not find there was no evidence that the Minister had read the letter, rather there was no evidence as to whether the Minister read the letter. The two propositions are quite different. No inconsistency is demonstrated in the learned trial judge's approach.

101 Although the trial judge appears to have left open the question of whether the Minister read or was aware of the letter, it was open to his Honour to draw an inference, based on the facts before him, that this was so. This Court is in as good a position as the trial judge to 'decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge.'[57] The fact that the letter was addressed to the Minister and stamped as received by her office supports an inference that the Minister was, at the very least, aware of the letter. No evidence was led to suggest otherwise and this was not raised as an issue at trial.

102 Commonsense dictates that the letter of 13 October 2004 was before the Minister. Short of the Minister being called at trial to give evidence as to precisely what was before her, what she read and what she took account of in the intellectual process of making the decision, one could not be absolutely, unequivocally certain that the letter was taken into account. However, this was not a case of reverse onus of proof or the imposition of a special standard of proof. Logically, in the circumstances, the letter was seen by the Minister. A fair inference can be drawn that it formed part of her reasoning process.

103 In addition, the appellant pleaded its case on the basis of the public documents, but conducted its case on the basis of the public and the departmental documents. To reiterate, the appellant put the departmental documents into evidence, opened its case by including them and made the important concession at trial that the majority of the documents were before the Minister. Indeed, the appellant did not raise the issue of whether the letter dated 13 October 2004 was before the Minister at the time of the impugned decision. Cases are decided on the evidence and the way they are conducted at trial, not only on the pleadings.

104 It is therefore permissible to consider the letter of 13 October 2004 as part of the analysis of the departmental documents taken into account by the Minister in arriving at her decision. If, however, the letter were to be excluded from the analysis, the position does not change.

105 The significance of the letter of 13 October 2004 to the reasoning of the learned trial judge was limited. His Honour held that the departmental documents

reveal that the only aspect of the development which PCH was undertaking to complete before the Commonwealth Games was the refurbishment of the existing hotel: an aspect of the development that did not require planning permission. They also reveal that before agreeing to the amendment the Minister obtained an undertaking from PCH that, if the amendment was approved, PCH would refurbish and maintain operation of the Hilton Hotel, using its best endeavours to complete the refurbishment prior to the 2006 Commonwealth Games.[58]

106 These findings are wholly contained within the letter dated 10 December 2004.[59] The Second Briefing Note, signed by the Minister, brings this information to her attention.[60] Therefore, even if the letter dated 13 October 2004 is excluded from the analysis, the learned trial judge's findings stand.

107 Following a discussion of the public documents only, the learned trial judge came to the conclusion that these documents on their own created an 'overall impression' that the exemption was 'necessary for the purpose of providing additional accommodation for the Commonwealth Games.'[61] However, when all the documents, both public and departmental, are taken into account this is not the impression or conclusion that his Honour reached.[62] This does not indicate that the overall impression, or reason, based on the public documents alone is at least a reason for the exemption decision. Such a conclusion would require an assumption that, in looking at half of the picture, one can determine a reason and then, by looking at the whole picture, one can determine an additional reason. This is not the correct approach and it is not the course taken by the learned trial judge.

108 His Honour reached a conclusion about the overall impression created by the public documents, but held that this was not the true picture and went on to consider the departmental documents to discern the reasons for the decision. In determining reasons for a decision, it is necessary to look at all the relevant evidence and arrive at a conclusion. It is not correct to compartmentalise the evidence and use a particular part of it to discern a reason, then other evidence to discern another reason. The evidence must be looked at as a whole to determine the reasons for the decision.

109 On this basis, no error is demonstrated in the approach of the learned trial judge. It was open for his Honour to have regard to the documents that were taken into account by the Minister at the time of the decision, as presented in evidence by the parties, whether they were departmental documents or public documents. This is what his Honour did. In terms of the exercise of discretion conferred by s 20(4), if the documents bore on the exercise of the discretion, they are relevant to an assessment of the reasonableness of the decision.

The distinction between merits review and judicial review

110 In any event, if the letter dated 13 October 2004 is disregarded the Minister's decision cannot be said to be unreasonable in a Wednesbury sense. The threshold to establish Wednesbury unreasonableness is high. Brennan J has described the limitation imposed on the exercise of administrative power by the Wednesbury unreasonableness ground as 'extremely confined'.[63] Similarly, Kirby J observed, in obiter, that the unreasonableness ground is an 'exceptional' basis for overturning a decision, retained by the common law to allow an element of flexibility to cover the exceptional case.[64] The formulation in the Wednesbury case itself called for 'something overwhelming', something 'so unreasonable that no reasonable authority could ever have come to it.'[65]

111 More recently, in Minister for Immigration and Multicultural Affairs v Eshetu,[66] Gleeson CJ and McHugh J stressed that merely asserting that a decision was unreasonable is not sufficient to establish an error of law,

[s]omeone who disagrees strongly with someone else's process of reasoning on an issue of fact may express such disagreement by describing the reasoning as 'illogical' or 'unreasonable', or even 'so unreasonable that no reasonable person could adopt it'. If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence.

112 The statement confirms the well-established principle that, when reviewing administrative action, the Court does not engage in a review of the merits of the decision.[67] The distinction between a review on the merits and a review of the legality of a decision is fundamental to administrative law. The power to engage in administrative action resides with the repository of the relevant power. The Court's jurisdiction centres on determining whether the decision was taken within power, 'the Court has no jurisdiction simply to cure administrative injustice or error.'[68] Establishing Wednesbury unreasonableness requires a 'major step further' than simply establishing an error in reasoning.[69] This is particularly so 'where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste'.[70] That is, where the decision maker is required to hold a subjective opinion as the Minister is required to hold under s 20(4) of the Act. The section requires that 'the Minister considers that compliance with any of ... [the notice provisions] ... is not warranted or that the interests of Victoria or any part of Victoria make such an exemption appropriate.' The wording of this section confers a broad discretionary power on the Minister.

113 The evidence before the trial judge established that the Minister possessed the necessary state of mind to satisfy an exercise of her discretionary powers under s 20(4) of the Act. As previously observed, it was conceded by the appellant that the letter dated 10 December 2004 and the Second Briefing Note were before the Minister at the time the decision was made. The letter contains the second respondent's undertaking to complete the refurbishment of the Hilton Hotel in time for the Commonwealth Games. The Second Briefing Note states that 'the redevelopment and refurbishment of the Hilton on the Park Hotel including the MCG Hotel would be the subject of a site specific amendment.' The Minister stated in her Statement of Reasons that she was 'satisfied that the proposed development and the amendment raise[d] a major issue of genuine State significance.' It is explicitly stated in the Minister's official reasons that the refurbishment will be completed in time for the Commonwealth Games, and the combined redevelopment project will contribute to the accommodation on offer for the Commonwealth Games.

114 The evidence reveals that it was reasonable for the Minister to consider that the refurbishment and redevelopment of the Hilton Hotel would be of such significance to the State of Victoria that exemption from the notice provisions was warranted.

115 Essentially, the appellant's case at trial asserted that the Minister's decision to use the powers conferred by s 20(4) was wrong in the sense envisaged in Eshetu.[71] The Minister determined that use of the power conferred by s 20(4) was warranted to put PCH in a position where the expansion could proceed without the normal notice requirements, and that, in exchange, PCH would refurbish the Hilton Hotel in time for the Commonwealth Games. It is a political decision that does not transpose to an error in law. It is not for this Court, or the learned trial judge, to assess the merits of the Minister's decision. If the decision was made lawfully, it must stand.

116 There is no error in the learned trial judge's finding that Wednesbury unreasonableness was not made out in the circumstances. It was reasonable for the Minister to decide to exercise her powers under s 20(4) of the Act based on the dual purposes held by the trial judge. It was open to the trial judge to have regard to all the documents that were taken into consideration by the Minister at the time the decision was made, be they public or departmental documents. Furthermore, it was open to his Honour to hold that there was more than one purpose for the Minister deciding to exercise her powers under s 20(4) of the Act.

117 It follows, therefore, that no error has been demonstrated and grounds 1, 2, 3 and 4 are not made out.

118 Ground 5 was couched in the following terms in the Further Amended Notice of Appeal:

The trial judge erred in finding that the briefing note of 14 December 2004, together with the first and second Hilton letters [the letters dated 13 October 2004 and 10 December 2004], revealed that the refurbishment of the existing hotel was the only part of the project which the second Defendant [PCH] undertook to complete prior to the commencement of the 2006 Commonwealth Games.

119 This ground essentially takes issue with a finding of fact on the part of the learned trial judge. The ground itself reveals no error of law. Statements in the documents considered by his Honour indicate that this was a fact reasonably open for him to find. No reason has been made out that the finding of fact by his Honour should be revisited. Indeed, isolating the finding of the judge in ground 5 is selective and misleading. His Honour made a full and reasoned finding which is sufficient for present purposes.[72]

120 It follows that no error is made out and ground 5 does not succeed.

121 The effect of multiple reasons creates a further matter for consideration. At issue is the question of what, in circumstances where there is more than one reason for a decision, is the consequence of one reason being invalid. This issue would arise in the event that the Court held that a reason for the Minister exercising her power to exempt Amendment C101 was to provide additional accommodation in a timely manner for the Commonwealth Games. This draws on the finding of the trial judge that the 'overall impression' created by the public documents was that the amendment was for that purpose.[73] However, upon consideration of all the documents, the trial judge went on to hold that the reasons for the exercise of the discretion were two-fold. First, to avoid the normal scrutiny involved in a planning appeal hearing; and, secondly, to facilitate refurbishment of the Hilton Hotel in a timely manner for the Commonwealth Games.[74]

122 There was no error by the trial judge in concluding that there were two reasons for the exercise of the discretion and that they can be ascertained from the public and departmental documents. Neither of these reasons are unreasonable in a Wednesbury sense, or invalid in any other way. As such, it is unnecessary to consider the question of the effect of one invalid reason on a decision based on multiple reasons. Nevertheless, I would be inclined to think that if such an issue arose, the question would be whether the invalid reason were a materially operative reason. If so, the invalid reason may serve to infect the validity of the entire decision. That is, if a materially operative reason for a decision is unreasonable in a Wednesbury sense, then the decision itself may be Wednesbury unreasonable. However, this does not fall for consideration in the present case.

Section 20(4) of the Planning and Environment Act

123 By ground 6, the appellant contended there must be a sufficient nexus between the planning scheme amendment exempted from notice requirements under s 20(4) of the Act, and the matter which is of State or regional significance. This, the appellant submits, stems from the legislative intent, expressed in the Act itself. Counsel for the appellant relied on s 4(2)(h) and (i) to argue that the objectives of the planning framework established by the Act reveal an intention that there be public participation in the planning approval process. Accordingly, provisions such as s 20(4) that enable the exclusion of public or third party involvement in the approval process, are an exception to the general rule and must be strictly construed. On this narrow reading, the appellant submitted, a nexus between the amendment exempted under s 20(4) of the Act and the matter which is of State or regional significance is required.

124 Furthermore, the appellant contended that if a real reason for the matter being of State or regional significance was the refurbishment of the Hilton Hotel in time for the Commonwealth Games, the required nexus did not exist because planning approval was not required for the refurbishment. As such, the amendment which was the subject of the Minister's decision under s 20(4) did not facilitate the refurbishment of the Hotel. Through this argument the appellant contended that the Minister's consideration of the benefits of the refurbishment aspect of the project in her decision to exempt amounted to use of the power for an improper purpose, or the taking into account of an irrelevant consideration.

125 An assessment of the legitimacy of the purpose for the exercise of a statutory power must be made in light of the purpose of the statute itself. Similarly, an assessment of the matters that may legitimately be considered in deciding whether to exercise a discretionary power must be based on the purpose of the statute itself. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Mason J (as he was then, with whom Dawson J agreed) described the basic propositions in relation to relevant considerations. In relation to a statute conferring an unconfined discretion his Honour held that

the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision maker may legitimately have regard.[75]

126 The discretion conferred on the Minister by s 20(4) to determine whether the interests of Victoria or a part of it made exemption from notice provisions appropriate, is a broad power exercised in the public interest. The expression 'in the public interest' in a statute has been interpreted as importing

a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view'.[76]

127 What then is the purpose and scope of the Act? The objectives of the Act are stated in s 4. Section 4(1) states the objectives of planning in Victoria.[77] Section 4(2) lists the objectives of the planning framework established by the Act. By s 8(2), the Minister is a planning authority under the Act. Section 12(1)(a) states that a planning authority must, inter alia, implement the objectives of planning in Victoria.

128 Turning to consider the specific provisions relied upon by the appellant, s 4(2)(h) states that an objective of the planning framework established by the Act is 'to establish a clear procedure for amending planning schemes, with appropriate public participation in decision making.' Section 4(2)(i) provides a further objective 'to ensure that those affected by proposals for the use, development or protection of land or changes in planning policy or requirements receive appropriate notice.'

129 The legislative scheme displays an intent that, in some circumstances, public participation and notice provisions will be limited. By the use of the phrase 'appropriate public participation', the language of the objectives relied upon by the appellant contemplate circumstances where public participation in decision-making will not be appropriate.[78] Affected parties receive 'appropriate' notice, indicating notice requirements depend on context and circumstance.

130 Section 20(4) of the Act is not unique in excluding notice requirements. It applies only to the amendment of planning schemes. A similar provision applies in relation to planning permits. Section 52(4) states that a planning scheme may exempt a class or classes of applications from all or any of the notice requirements in s 52(1).[79] This provision is reflected in s 6(2)(kc) which states that a planning scheme may 'set out classes of applications for permits exempted wholly or in part from s 52(1) and set out notice requirements (if any) to apply in place of the requirements of that sub-section.'[80] Similarly, public participation has also been limited in some circumstances. For example, the option, for objectors, of review by the Tribunal where a planning scheme exempts a decision from such review is removed by s 82(3).

131 Indeed, a relaxation of notice requirements and public participation to allow 'fast tracking' of some projects was envisaged in the second reading speech in relation to the most recent amendment to s 20(4). The Planning Minister at that time, Mr Robert Maclellan, stated that the amendment to s 20(4):

expedites the granting of notice exemptions by the Minister in relation to amendments prepared by councils and the Minister ... The granting of exemptions from all notice requirements does, of course, fast track a decision on an amendment. These are sometimes sensitive decisions and the clause proposes that the ordinary notice to Parliament about amendment approvals include reference to the granting, if any, of exemptions.[81]

132 Importantly, the Minister referred to the insertion of s 38(1A) and (1B), included with the amendments to s 20(4), which modified the ordinary notice to Parliament required under s 38(1). Section 38 relevantly provides:

(1) The Minister must cause a notice in the prescribed form of the approval of every amendment to be laid before each House of Parliament within 10 sitting days after it is approved.

(1A) A notice under sub-section (1) must state whether the Minister has exempted the planning authority or himself or herself from any of the requirements of section 17, 18 or 19 or the regulations.

(1B) If an exemption has been given, the notice must -

(b) state the notice, if any, given of the amendment

(c) state whether the Minister consulted the responsible authority before giving the exemption; and

(d) if the responsible authority was consulted, include a summary of the authority's recommendations (if any) in relation to the exemption.

(2) An amendment may be revoked wholly or in part by a resolution passed by either House of the Parliament within 10 sitting days after the notice of approval of the amendment is laid before that House.

133 Clearly, this amendment to s 38 was intended to provide a check on the Minister's power by notifying Parliament that the amendment had been exempt from notice provisions and providing a means by which the amendment could be revoked. The power exercised by the Minister is subject to an ultimate check and balance by Parliament. This amounts to public participation, albeit not through the notice procedure.

134 The appellant further asserted that the Practice Note provided another restriction on use of the power conferred by s 20(4) of the Act. It was submitted that the relevant test for granting an exemption, as stated in the Practice Note, is whether the matter is of State or regional significance. This assertion cannot be supported. The Practice Note merely includes a non-exhaustive list of the criteria which will usually be relevant when considering ministerial intervention, it does not specify a 'test' to be applied. The Practice Note states, '[w]hile all the circumstances in which intervention may be considered cannot be prescribed, the following criteria will usually be relevant'. It then lists five criteria, the first of which is that the matter will be one of genuine State or regional significance.

135 In addition, the Practice Note was not issued pursuant to a statutory power, such as that conferred by s 7(5) of the Act, and does not therefore have statutory force. It is merely an advisory note guiding the use of the power conferred by s 20(4). This view is supported by the reasoning of Brooking J in Grollo Australia Pty Ltd v Minister for Planning and Urban Growth and Development, where his Honour stated, 'the power conferred by s 20(4) is not to be cut down by any limitations save those expressly laid down by the sub-section itself.'[82]

136 The appellant's submission in relation to irrelevant consideration, improper purpose and a nexus requirement for s 20(4) must be considered in view of the backdrop of the planning framework in Victoria generally. The subject matter, scope and purpose of the Act cannot be viewed through a keyhole. The purpose of the Act is explicitly stated as directed to establishing 'a framework for planning the use, development and protection of land in Victoria in the present and long-term interests of all Victorians'.[83] In this broader context, the Act may be seen as part of a scheme of legislation and policy directed to the facilitation of development in line with planning objectives.

137 One objective of planning in Victoria, stated in s 4(1)(f) of the Act, is to facilitate development in accordance with the objectives set out in the section.[84] Similarly, s 4(2)(e) seeks to 'facilitate development which achieves the objectives of planning in Victoria and planning objectives set up in planning schemes.' This demonstrates that the planning framework does not exist simply to regulate development, but also to facilitate development. Historically, the planning framework in Victoria was focused on regulation.[85] With the introduction of the Planning and Environment Act in 1987 the focus had shifted to the facilitation of development in line with planning objectives.

138 Section 173(1) provides an example of this. The section provides a mechanism for a responsible authority, including the Minister, to enter into an agreement with an owner of land in the area covered by a planning scheme for which it is a responsible authority. Section 174(2) states that such agreements may provide for a range of matters including any matter intended to achieve or advance the objectives of planning in Victoria,[86] or any matter incidental to such a matter.[87] Such agreements do not amount to a responsible authority merely imposing controls and conditions on a landowner's use or development of land, as is envisaged by s 174(2)(a). Rather, they are facilitative of outcomes.

139 Further insights into the intent behind the planning framework may be discerned from the Victorian Planning Provisions ('VPPs'), and, in particular, the State Planning Policy Framework ('SPPF'). The VPPs are prepared under Part 1A of the Act and their purpose is to 'assist in providing a consistent and co-ordinated framework for planning schemes in Victoria.'[88]

It is the State Government's expectation that planning and responsible authorities will endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development.

to ensure that the objectives of planning in Victoria (as set out in Section 4 of the Planning and Environment Act 1987) are fostered through appropriate land use and development planning policies and practices which integrate relevant environmental, social and economic factors in the interests of net community benefit and sustainable development.

142 These clauses reveal the intention that the balancing of competing factors to produce a net community benefit and sustainable development is integral to the policy supporting the Act and, therefore, integral to the Minister's exercise of discretion under s 20(4).

143 I do not accept the appellant's submission that s 20(4) must be strictly construed on the basis of the legislative intent determined by focusing on selected objectives in the Act and the subsection itself. The purpose of the Act is clearly stated, that 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.'[89] The legislative intent is not, as the appellant submitted, to ensure public participation in the planning process, a point not argued before the learned trial judge.

144 Nonetheless, the plain and ordinary meaning of the words in s 20(4) 'if the Minister considers that compliance with any of [the notice] requirements is not warranted or that the interests of Victoria or any part of Victoria make such an exemption appropriate', require the exercise of a ministerial discretion within the planning framework. That framework is determined by the Act and the various planning instruments and policies emanating from it. In exercising the discretion in the present case, the Minister was required to strike a balance between competing factors.

145 It was open to the Minister to consider that the amendment was in the interests of the State of Victoria or a part of it.[90] In light of the subject matter, scope and purpose of the Act, the Minister made a discretionary judgment in relation to the proposal as a whole. The project would produce significant benefits for the community. Many examples of such benefits are incorporated in the Statement of Reasons, including:

The proposal reinforces the role of Melbourne as a primary tourist destination ...

The construction of the new accommodation and upgrade of the existing accommodation will involve an investment of approximately $86 million dollars [sic] and will have substantial positive flow-on effects for the Victorian economy ...

The proposal will [create] an attractive gateway to the Central Activities District and reinforce the boulevard role of Wellington parade through appropriate built form, improved street frontages, improved surveillance and safety to public spaces ...

The proposed development and amendment is consistent with the State Planning Policy Framework [including] Cl.17.01 Activity Centres: by providing major accommodation and commercial/entertainment development that reinforces the primary activity centre and capital city role of the City of Melbourne ... Cl.17.04 Tourism: by encouraging tourism to maximise long term economic and employment benefits through the provision of quality accommodation and entertainment facilities ...

The hotel refurbishment will be completed in time for the 2006 Commonwealth Games to be hosted in Melbourne. In turn this facility will raise the image and profile of Melbourne and improve the backdrop to the MCG and sporting precinct surrounding.

146 These factors were taken into consideration by the Minister in balancing the positive benefits arising from the development against the negative of excluding public participation through exemption from notice provisions, as is required of a decision maker exercising powers under s 20(4). In doing so, the Minister validly exercised her discretion to decide whether exemption from the notice provisions was in the interests of Victoria or a part of it.[91]

147 In determining whether to exercise the power of exemption, the Minister was permitted to consider a range of factors including those of a social, economic, political, heritage and environmental character, and the present and future interests of the Victorians. These considerations are envisaged within the purpose and objectives of the Act itself, and they inform the nature of the discretionary value judgment to be made by the Minister. It was for the Minister to balance all of the factors to decide whether exemption was appropriate, thus replacing the ordinary scrutiny through notice provisions with scrutiny by Parliament through notice provided under s 38 of the Act.

148 The desirability of the amendment itself cannot be separated from the desirability of exempting it from notice provisions. The second reading speech for the most recent amendment to s 20(4) envisages that the section will be enlivened to 'fast track' some decisions, and acknowledges that they are sometimes of a sensitive nature. This demonstrates that Parliament considered that both temporal and political aspects may warrant invocation of the power under s 20(4).

149 The urgency and sensitivity of the matter are inextricably bound to the desirability of an amendment and consequent development. It is true that the greater the sensitivity or urgency (or both) of a proposed amendment, the greater the imperative to pursue scrutiny by the public through Parliament, rather than the notice provisions. But, the desirability of an amendment also has a direct effect on whether exemption is appropriate. If the matter is highly sensitive or urgent but, on balancing the public interest factors, the development itself is found not to be desirable, exemption is unlikely to be appropriate. However, if the matter is highly sensitive or urgent and the development is highly desirable, exemption may well be appropriate.

150 The assessment required by s 20(4) is a qualitative assessment on the part of the Minister. The various factors, such as the advantages and disadvantages of removing the requirement for notice and the effect of an amendment in social, environmental and economic terms, are weighed together to determine whether the exemption is in the interests of Victoria. The desirability of an amendment is a component of this assessment.

151 In the present case, the necessary balancing of factors by the Minister is evident in the public and departmental documents. The Statement of Reasons describes the particular power of intervention being used as one to expedite the amendment by exempting the Minister from notice requirements and removing the usual scrutiny associated with notice. This scrutiny is transferred to the realm of Parliament.

152 The appropriateness or otherwise of exercising the power to exempt in relation to Amendment C101 was assessed by the Minister balancing competing factors and in relation to the entirety of the development proposal, not the refurbishment or the expansion as discrete and separate items. The Minister considered the development as a whole in terms of exemption, adoption and approval. It is clear that the refurbishment component of the proposal was dependant on the expansion element. To separate the two requires an avoidance of the reality of the proposal as it was put to the Minister.

153 Whilst it may be considered unfortunate that Parliament did not require more demanding parameters than simple notification around a Minister's explanation of granting notice exemptions, the requirements intended by Parliament of that Minister are listed clearly in s 38 of the Act. They do not include the provision of reasons for the exercise of the power to exempt. In contrast to the regulation of planning permit applications, the Act does not provide for appeal to the Tribunal for decisions on amendments to planning schemes. The regulatory framework relating to permits is set out in Part 4 of the Act, with Division 2 devoted to reviews by the Tribunal. No such provisions appear in Part 3 relating to the amendment of planning schemes.

154 Ordinarily, the primary purpose for giving reasons for the exercise of a discretionary power is to provide sufficient information to parties affected by the decision to enable them to determine whether a challengeable error has been made.[92] When s 20(4) is utilised, the mechanism by which reasons are provided and their purpose is not the same. The policy behind s 20(4) is to provide a mechanism to avoid notice provisions and allow the Minister to adopt and approve an amendment with the responsibility for oversight of such a decision being moved to the domain of Parliament. In practical terms, this limits the level of public participation in the decision to adopt and approve an amendment and, therefore, the potential for the public to challenge such a decision. This was clearly intended by Parliament in enacting the new s 20(4) to enable 'fast tracking' of sensitive decisions.

155 In the present case, the document containing the official reasons came into being as a result of guidelines contained in the Practice Note, which itself was a creature of the Executive, not the Parliament.[93] The mechanism for public scrutiny thus became the Parliament itself, rather than the broader public, and the Minister was answerable to the public, through Parliament, for the decision to exempt.

156 It may be unfortunate that the effect of s 20(4), as utilised by the Minister in the present manner, is to emphasise the politically expedient factors that contributed to the decision being made. Ultimately, however, the question for the courts is not 'should the Minister be allowed to act in this way' but, 'did the Minister act within legal parameters'. It is for Parliament, in passing legislation such as that inserting or amending s 20(4), to set the parameters of what is expressly required of the decision maker by the statute when explaining the use of the section.

157 With respect to the appellant's submission that the refurbishment, being a reason for the Minister's decision to use the powers under s 20(4), served to invalidate that decision, I cannot agree. A development that, if approved, would achieve the objectives of the planning framework may form part of the net community benefit envisaged by the SPPF. Furthermore, a development may be directly desirable of itself, or it may be desirable in its facilitation of an outcome. For example, cl 43.01-5 of the Heritage Overlay to the VPPs provides for the use of heritage places for prohibited purposes where, inter alia, the benefits obtained can be demonstrably applied towards the conservation of the heritage place. Therefore, development that may not be desirable ordinarily may become desirable as a result of the specific outcome, that is, conservation of the heritage place.

158 The proposed development in this instance involved a series of putative benefits. It was for the Minister to weigh these, including the facilitation of desirable development, against the negative step of departing from the ordinary process of public participation. This weighing was not done in a procedural vacuum but in the context of previous proceedings, including the undertaking by the second respondent to use its best endeavours to complete the refurbishment of the Hilton Hotel prior to the Commonwealth Games,[94] an undertaking reflected in the Incorporated Document. This document separates the refurbishment of the Hilton Hotel and the restoration of the MCG Hotel aspects of the proposed development from the expansion proposal. It creates time limits for commencement of the refurbishment and restoration aspects and sets a completion date for the entire development, including the expansion proposal. [95]

159 As observed, the planning framework is not simply directed to regulating development. The legislative intent and context confirms that it is also directed to the facilitation of development.[96] The fact that no regulatory permit or amendment was required to carry out the refurbishment works does not mean the desirability of those works was irrelevant to the exercise of the Minister's discretion. The outcome of refurbishment of the Hilton Hotel prior to the Commonwealth Games was clearly contemplated by the Minister in her assessment of the proposal, and her decision to use the exemption provided for by s 20(4).

160 It was open to the Minister to facilitate a desirable development, as a package, by exempting it from the notice provisions on the basis that it would provide for an outcome that would result in a net benefit to the community as envisaged in the SPPF. It was for the Minister to balance competing objectives to determine whether exemption from the notice requirements was appropriate in relation to the public interest. Consideration of the refurbishment of the Hilton Hotel as one factor in the decision does not, therefore, serve to invalidate that decision. The point raised in argument in relation to irrelevant considerations or improper purposes similarly does not advance the appellant's cause.

161 For these reasons, no error has been demonstrated. Ground 6 is not made out.

Further observations regarding the interpretation of s 20(4)

162 Some additional observations may be made regarding the interpretation of s 20(4), although the ultimate determination of this case is not based on them. First, the relevant test for s 20(4) is set out in the section itself. It requires that 'the Minister considers that compliance with [the notice] requirements is not warranted or that the interests of Victoria or any part of Victoria make such an exemption appropriate.' These terms are disjunctive. The use of the word 'or' indicates that the Minister need only consider that either compliance with the notice requirements is not warranted or that the interests of Victoria, or any part of it, make exemption from the notice requirements appropriate. Nevertheless, it is unnecessary to determine the point for

present purposes. Indeed, it was not argued at the trial or in the appeal.

163 Moreover, and although it did not arise in this case, consideration may be required in future of the ramifications of the Charter of Human Rights and Responsibilities Act 2006 (Vic) to the application of s 20(4) of the Act.

164 As none of the grounds have succeeded it is unnecessary to consider the notice of contention. I would dismiss the appeal.

165 This appeal is concerned with the validity of the exercise of a statutory discretion by a Minister of the Crown. It is a discretion to exempt an amendment of a planning scheme prepared by the Minister from what may be broadly described as the notification process which is laid down by Division 1 of Part 3 of the Planning and Environment Act 1987 (Vic) ('the Act'). Division 1 of Part 3 deals with amendments prepared by a 'planning authority'. The Minister is one such authority.

166 The notification process is, in the ordinary course, the necessary antecedent of amendment of a scheme. The giving of notice - and s 19 of the Act requires broad notification to potentially interested parties - triggers a process, which may be protracted, that culminates in the Minster's approval or refusal to approve the amendment, or part thereof.[97] In Grollo Australia Pty Ltd v Minister for Planning and Urban Growth and Development,[98] Brooking J viewed compliance with Divisions 1 and 2 of Part 3, leaving aside argument as to the effect of a privative provision,[99] as a condition precedent to the valid adoption of an amendment.

167 In the present case, the second respondent, PCH Melbourne Pty Ltd ('PCH'), which was the developer immediately advantaged by the amendment, submitted the

proposed amendment and associated documents - including carefully drafted reasons for intervention and exemption - to a senior officer of the Department. Discussion ensued between the developer's planning consultant and departmental officers, and some alterations were made to the draft documents. Then they were submitted to the Minister, who on 14 December 2004 wholly exempted the amendment from the notification process, and thereupon adopted and approved the amendment - giving as her reasons for intervention the reasons drafted by PCH and settled, with very modest amendment, in the consultative process to which we have just referred. The amendment permitted the redevelopment of land in the vicinity of the Hilton on the Park Hotel ('the Hilton', or 'the Hilton land') in East Melbourne.

168 The appellant, East Melbourne Group Inc, in substance a group of East Melbourne residents who claimed to be affected by the amendment, brought a proceeding which sought to have the Minister's exercise of discretion, and in consequence the amendment itself, struck down. The attack failed at first instance. Hence this appeal.

169 The principal claim made by the appellant at trial and before this Court was that the Minister's decision to exempt herself from the notification process was invalid because it was based upon the proposition that the development authorised by the amendment, which included a 15 storey building adjacent to the Hilton Hotel containing 89 apartments, would be completed by March 2006 so as to provide accommodation for visitors attending the Commonwealth Games. The appellant contended that this was totally unrealistic, and such that no rational minister could have made; and that the decision was taken after considering an irrelevant matter, or was motivated by an ulterior purpose.

170 There are six grounds of appeal. In different ways, they focus upon the reasons for the exemption. The appellant contends that the judge below erred in his approach to determining the Minister's reasons for her decision to exempt; and consequently in the findings which he made in that connection. The appellant goes on to submit that, when the true reason is identified, it reveals an exercise of discretion which was invalid for one or more of the reasons to which we have just referred.

171 This is not a case in which the party seeking to impugn the decision seeks to rely upon matters extraneous to the reasons published by the decision-maker. Rather, the appellant contends that the defect in the Minister's decision is apparent within the published reasons.

172 Neither is the case one where, because a decision is unsupported by any reasons, it is necessary to look behind the decision to the material which was before the decision-maker in order to discern the reasons for the decision. Of the significance of this circumstance, more later.

173 On the appeal, subject to issues raised by a notice of contention filed on behalf PCH, the central questions debated by the parties thus focused upon the Minister's reasons for exercising the exemption discretion.

174 The proceeding sought judicial review of the Minister's decision. The scope and purpose of judicial review is to ensure that powers are exercised for the purposes for which they were conferred and in the manner in which they were intended to be exercised.[100] It is the extent of power and the legality of its exercise to which judicial review is directed.[101]

Restraint in review of administrative decisions

175 Having regard to the way in which the litigation was conducted, both at trial and on appeal, it is necessary for us to consider the material in order to see what reason or reasons the Minister gave for her exercise of the discretion to exempt. That said, we are conscious of the need to proceed with caution lest we exceed our supervisory role and trespass into the forbidden field of merits review.[102] It would not suffice if we took the view that a different decision would have been more appropriate or that another Minister might have reached a different result.[103] As Brennan J said in Attorney-General (NSW) v Quin:[104]

The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.

176 In Buck v Bavone[105] Gibbs J observed

However, where the matter of which the [decision-maker] is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached.

177 Gleeson CJ and McHugh J, in their joint judgment in Minister for Immigration and Multicultural Affairs v Eshetu,[106] referred to the following passage from the judgment of Lord Brightman in Puhlhofer v Hillingdon London Borough Council:[107]

Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.

178 We recognise that 'minor infelicities or trivial lapses in logic in cases where [ a decision-maker's] satisfaction as to a factual state provides the jurisdictional foundation for the exercise of power' would not warrant judicial review.[108] As Kirby J stated in Re Minister for Immigration and Multicultural Affairs :

The degree of restraint that a court will exercise in circumstances where the fact-finding process is said to have miscarried to a significant degree, so as to amount to jurisdictional error, will to a considerable extent depend upon the nature of the applicable power, the statutory context and the effect of the impugned decision. For instance, where an assessment and evaluation of complex evidence is required by an expert administrative agency, a greater degree of restraint may be called for. Similarly greater caution is appropriate where the subject matter of the decision involves a significant element of governmental policy or allocative determinations, making it more remote from ordinary judicial experience.[109]

179 The attack made upon the Minister's exercise of the exemption discretion requires determination of a disputed question of fact; that is, what was the reason (or were the reasons, we will not keep repeating the plural) for the Minister's decision to exempt? In that determination, an issue of principle arises: when reasons for a decision have been published, is it permissible, and if so in what circumstances, to have recourse to material which was before the decision-maker, and to infer that the reason for the decision was other than that published? When the issue of principle has been resolved, and applied to the circumstances of this case, and when the reason for the decision has been identified, it will be possible to consider and determine the attack upon the decision - founded, as we have said, essentially in the alternative, upon alleged 'Wednesbury' unreasonableness, improper purpose, and the taking of an irrelevant consideration into account.

180 For the most part, we will set out the principles which guide consideration of a particular ground of attack when we come to deal with that ground. But it is convenient at the outset to address the principles which are to be applied when a decision is attacked as being unreasonable in the Wednesbury[110] sense. It is convenient to do so because it was not in issue that, if the reason which the trial judge found was publicly expressed by the Minister as justifying her exercise of the exemption discretion was the reason for the Minister's opinion, or at least a materially operative reason, it would constitute Wednesbury unreasonableness in one or more of the ways which we now briefly discuss; and because the principles themselves were not in dispute.

181 The Act requires the Minister to consider the material facts and to form the opinion stated in s 20(4). The 'jurisdictional fact' upon which the right to exercise the power rests is the opinion of the Minister. Courts have required that the formation of the necessary state of satisfaction be 'reasonable.'[111] To be successfully impugned, the opinion, and thus the exercise of the discretion, must be one so devoid of any plausible justification that no reasonable person could have reached it.[112]

182 Thus, the exercise of the Minister's statutory power to exempt a proposed amendment from the notification process would be vitiated by Wednesbury unreasonableness if it was shown that the opinion founding the decision was so unreasonable that no reasonable person could have come to it. The decision would not then be a reasonable exercise of the power.[113] As Gummow J said in Bienke v Minister of Primary Industries and Energy, the Wednesbury doctrine is 'concerned with ultra vires in a broad sense of vitiation by reason of engagement by the decision-maker in an abuse of discretion'.[114]

183 A decision may be unreasonable in the Wednesbury sense because it is manifestly unreasonable, that is, it simply defies comprehension,[115] or because it is obvious that the decision-maker consciously or unconsciously acted perversely.[116] Wednesbury unreasonableness will also be made out where there was manifest illogicality in arriving at the decision - there being illogical findings, or inferences of fact unsupported by probative material or logical grounds.[117] 'Irrationality' thus encompasses disregard of relevant considerations, giving regard to irrelevant considerations and manifest unreasonableness.[118]

184 Where the requisite opinion has been formed, the courts will interfere where there is an 'absence of any foundation in fact for the fulfilment of the conditions upon which in point of law the existence of the power depends.'[119] Where all of the evidence points one way, and the opinion rests upon a contrary view, there will be jurisdictional error because the decision will not be supported on logical grounds by the material adduced.[120] In Chan Yee Kin v Minister for Immigration and Ethnic Affairs[121] McHugh J, with whom Mason CJ agreed, held that important parts of the reasons of the delegate were, upon consideration of the evidence, in error and could not be supported on any reasonable basis. If the facts disclose no basis for the decision, it will be invalidated[122] without, as McHugh and Gummow JJ state in S20,[123] any distinction being drawn between errors of law and fact. Likewise, in S20 Kirby J emphatically rejected the notion that a decision that is 'perverse' 'illogical' or 'marred by patent error' can be immune from correction because it is a decision about the facts.[124] Further, where by the decision-maker's own criteria it can be seen that the factual result is perverse, the decision may be struck down on the grounds of unreasonableness.[125]

185 Before turning to the factual circumstances which gave rise to the Minister's decision, and identification of the reason(s) for the exercise of her discretion, we should make some general observations about the relevant discretion. Confided to the Minister by s 20(4) of the Act, it is as follows:

The Minister may exempt himself or herself from any of the requirements of sections 17, 18 and 19 and the regulations in respect of an amendment which the Minister prepares, if the Minister considers that compliance with any of those requirements is not warranted or that the interests of Victoria or any part of Victoria make such an exemption appropriate.

186 The underlying policy behind s 20(4) is to provide a mechanism which avoids the notice provisions and allows the Minister to adopt and approve an amendment with responsibility for oversight being removed to Parliament. But the discretion is not unfettered. Parliament has provided the circumstances in which the discretion conferred by s 20(4) may be exercised. The discretion has, as its touchstone, the opinion of the Minister - 'the Minister considers' - that compliance with any of the notification requirements 'is not warranted or that the interests of Victoria or any part of Victoria make such an exemption appropriate.'[126] Its exercise is subject to the scrutiny of Parliament; but Parliament has left the validity of the exercise of the power to review by the courts.

187 It is a discretion which is akin to, but not identical with, a discretion vested in the Minister by s 20(2) to exempt or modify the notification requirements of s 19 in the case of a planning authority other than the Minister.

188 Subject to an argument raised by PCH as to the reach of a privative provision, (s 39(7) of the Act), it was not suggested that the Minister's exercise of discretion was incapable of review by a court. If it could be doubted, the contrary has in any event been held to be the case.[127] A decision consequent upon the formation of the relevant opinion may be attacked on any of the conventional grounds for challenging the exercise of an administrative discretion: bad faith, improper purpose, taking account of an irrelevant consideration, failing to take account of a relevant consideration,[128] or the decision being so unreasonable that it cannot stand.

189 Refocusing upon s 20(4), the Minister must consider, in order to exercise the discretion to exempt, that compliance with some or all of the notification requirements of ss 17-19 of the Act is either not warranted or that the interests of Victoria make exemption appropriate. There is a significant conceptual difference between forming an opinion that exemption from notification is in the interests of Victoria and forming an opinion that the amendment exempted from notification is in the interests of Victoria.[129] That is so even though - as happened here - the Minister is able to approve the amendment forthwith (under s 35 of the Act) once the proposed amendment has been exempted from the notification regime; that is, because the review process which usually follows notification has been rendered inapplicable. When the discretion has been exercised then, absent any fault in its exercise, the only possibility of relief for a person who is opposed to the amendment is that the Parliament will revoke it - as to which see s 38(1)(1A)(1B) and (2) of the Act.

190 It appears to be customary for the Minister to deal with the issues of exemption and adoption and approval at the one time. As we have said, it is what happened here. The circumstance that the Minister considers that an amendment, or a development permitted by a proposed amendment, would be in Victoria's interests is likely to be relevant to a decision to exempt.[130] But we doubt that the opinion that an amendment was in the interests of Victoria could alone constitute a sufficient basis upon which to exercise the discretion to exempt. Urgency - see below - or perhaps the sensitivity[131] of a proposed amendment may provide a permissible basis for the exercise of the discretion. But that it not to say, absent such factors, that the desirability of the amendment would provide of itself a sound basis for the exercise of the discretion. It can be supposed that proposed amendments, and developments which require amendment of a planning scheme, will be consistent with planning policies and objectives. Were it not so, there would scarcely be a prospect of the proposed amendment being approved. From that starting point, it is a very short step, if a step at all, to an assertion that such a proposed amendment is in Victoria's interests. If the circumstances which we have described were enough to trigger a decision to exempt under s 20(4), the very large step of eliminating the notice and review provisions of the Act would become, potentially, a commonplace. Although the matter was not fully argued, we doubt that s 20(4) should be permitted to operate in such a way. But the question need not be decided because - as will later appear - we are of opinion that the Minister gave a more specific reason for exercising her discretion under that subsection.

191 The circumstance that the Minister considers an amendment, or a development permitted by a proposed amendment, to be in Victoria's interests must be considered from another perspective. Because, as it seems, it is customary for the Minister to deal with the issues of exemption, and adoption and approval, at the one time, it is necessary for the Minister to distinguish between circumstances which enliven the discretion to exempt and circumstances which lead to adoption and approval of the amendment. It may be that there will be an overlap in particular cases. If so, that must be made clear in the reasons that the Minister gives. Further, where an exercise of discretion is challenged, a court on review must be astute to discern the circumstances which bore upon the Minister's exercise of discretion, and circumstances which bore upon adoption and approval of the amendment.

192 We have said what would be unlikely to suffice as a justification for the exercise of the s 20(4) discretion. Now we identify one potent consideration. Urgency - it may arise for a number of reasons - would be likely to provide an obvious and discrete justification for the exercise of the s 20(4) discretion. A need for urgent action might persuade the Minister that the extensive regime of notification and consequential review prescribed by the Act should be eliminated, this facilitating immediate adoption and approval of the subject amendment.

193 The notion of urgency is seen in the authorities.

194 In Antoniou v Roper,[132] the Minister exempted notification of an amendment, and then approved it, in circumstances where a particular landowner was at the end point of an extensive process which had yielded the relevant planning permission. The site-specific amendment, at a stroke, put an end to the permission.

195 In Grollo Australia Pty Ltd v Minister for Planning and Urban Growth and Development,[133] the Minister exempted himself on two occasions from the notification requirements so as to enable immediate approval of amendments to the metropolitan region planning schemes, the amendments having as their specific target - although they were general in their operation - an appeal and application which were then before the Administrative Appeals Tribunal. The second amendment was necessary because the first was arguably deficient. The second amendment hit its immediate target. The Tribunal appeal was disallowed because the amendment had rendered the appellant's principal argument nugatory.

196 In the course of his reasons for judgment, Brooking J opined that it had been open to the Minister to consider that 'the amendment was necessary as a matter of urgency "in the over-riding interests of Victoria"[134] and that the delays consequent upon the usual procedures should therefore be avoided'.[135] His Honour thought it open to the Minister, as a matter of law, to have regard to the appeal in considering Victoria's over-riding interests.

197 In the first of those conclusions, Victoria's over-riding interests in the passage of the amendments were viewed through the prism of urgency. In each of them, his Honour laid emphasis upon the perceived urgency of the situation.

198 Apart from aspects of the discretion to which we have already referred, we should mention that the form of s 20(4) has altered since it was considered in Antonio and Grollo.[136] Its old form was as follows:

The Minister may exempt himself or herself from any of the requirements of s 17, s 18 and s 19 and the regulations in respect of an amendment which the Minister prepares, if the Minister, after consultation with the responsible authority, considers that compliance with any of those requirements is not warranted or that the over-riding interests of Victoria necessitate exemption.

199 There are three changes of substance in the current section. First, there is now no prima facie obligation of consultation between the Minister and the responsible authority. Section 20(5) simply permits the Minister to engage in such consultation. Under the old s 20(5), the Minister was only relieved of the obligation to consult which was imposed by s 20(4) 'if, in the special circumstances of the case, consultation is not reasonably possible.'

200 Second, the phrase 'the over-riding interests of Victoria' has been replaced by 'the interests of Victoria or any part of Victoria'. In substance, this accords with the construction which, in Grollo, Brooking J placed on the old s 20(4).[137]

201 Third, s 20(4) in its old form required the Minister to be of opinion that, inter alia, whole or part exemption was necessitated by the over-riding interests of Victoria. In its present form, the section requires, relevantly, that the Minister be of opinion that the interests of Victoria make exemption appropriate.

202 We should say that each of the changes has 'lowered the bar' which is set by the section for a lawful exercise of discretion by the Minister. But none of them detracts from the views which we have expressed at [189]-[201].

203 Counsel for the appellant advanced a particular submission concerning the exercise of the discretion. He contended - in the context of alleged improper purpose and the taking into account of an irrelevant consideration - that if the discretion to exempt is to be validly exercised, a connection must exist between the amendment exempted from notification and the interests of Victoria; and that here such a linkage was absent. Later, we will deal discretely with that submission.

The course of events and the decision to exempt

204 On 14 December 2004, the Minister exempted herself from compliance with the entirety of the requirements of ss 17, 18 and 19 of the Act in respect of amendment C101 to the Melbourne Planning Scheme. Thereupon, she adopted and approved the amendment. On 16 December 2004, notice of the Minister's approval of the amendment was published in the Government Gazette.[138]

205 The amendment was site specific. Its effect was to permit the re-development of land adjacent to, being to the north and north-east of, the Hilton. The land the subject of the amendment embraced the Hilton land, land on which was erected the MCG Hotel ('the MCG Hotel land') and land on which stood a residence named 'Mosspennoch' ('the Mosspennoch land'). The land was in three titles.[139]

207 Proposed redevelopment of parts of the land affected by the amendment had been a source of disputation between the owners of the land and nearby residents for years. The history of that disputation - up to the time of the events which culminated in the amendment - is set out in the reasons for judgment of the learned judge at first instance.[140] We need not repeat that history. We observe only that the owner of the land, for some years, had not enjoyed success in obtaining approval for its various redevelopment plans.

208 The sequence of events culminating in the Minister's decision to exempt the amendment from the notification process, and to adopt the amendment, is recounted in the judge's reasons. It is convenient to set out what his Honour said, although in part we respectfully disagree with it:

1. This provides the background for the first step in a chain of events which led to the Minister's decisions under challenge in this proceeding. By letter dated 13 October 2004 the Victorian Development Director of PCH, Mr Kolomanski, wrote to the Minister for Planning seeking her intervention so as to facilitate the redevelopment of the MCG Hotel site. The letter, which was marked 'Commercial - in-confidence' [sic] highlighted the important investments that PCH and its parent company, Thakral Holdings Limited ('Thakral') had made in the Victorian economy. Mr Kolomanski informed the Minister that PCH was seeking to introduce the option of longer stay suites to the Hilton Hotel. He said that, in response to community demand, PCH was seeking to provide residential accommodation to persons requiring basic living services which would be economically and efficiently provided by the hotel infrastructure. The total additional accommodation proposed was said to be 89 units. Mr Kolomanski wrote:

'In order to maintain the 5 star standard of the Hilton Hotel, we will be required to expend at least $15 million on a major refurbishment, together with a $40 million expansion of residential accommodation and refurbishment of the adjacent MCG Hotel. We also propose to invest a further $20 million on the adjacent historic Mosspennoch property to restore it to its former glory and residential use, and to complete the development of the car park area adjacent to the Hilton on the Park.'

In his letter Mr Kolomanski noted that the net operating profit of the hotel had declined from $11 million in 2001 to $7 million in 2004. His letter then stated:

'With many Commonwealth Games events to be held at the adjacent Melbourne Cricket Ground, Flinders Park tennis complex and Olympic Park complex, it is vital that we commence works without delay if we are to have the Hilton on the Park fully refurbished and operational for the Melbourne Commonwealth Games in 2006.'

1. Mr Kolomanski then made various other statements to the effect that PCH was frustrated with the planning system and with the opposition it had received to its development proposals from the East Melbourne Group. Mr Kolomanski concluded his letter as follows:

'We are not a developer that seeks to push the limits. We are a conservative and ethical company that seeks both excellence and to be a good neighbour and valued member of the local community. We need to invest in our assets to keep them current and profitable in a difficult Melbourne Hotel market.

Without the assistance of the State Government in maintaining and enhancing the Hilton-on-the Park Hotel and the MCG Hotel, we will have no choice but to review our investment/disinvestment options to stem the continued capital losses. One very real option is the cessation of the Hilton on the Park in its current form and the redevelopment and orderly disposal of these assets.

Hilton Hotels are a world renowned brand and the withdrawal of such a powerful and respected brand from the Melbourne market would be a regretful but necessary commercial decision by Thakral, a major blow to the 328 hotel employees and approximately 1,400 employees in support and service industries and to the standing of Victoria in the international business community.

We believe that our East Melbourne land holdings, including iconic buildings such as:

• The MCG Hotel (formerly Parade Hotel @ 1853) where the rules of Australian Rules Football are widely believed to have been originally penned;

• The Hilton on the Park Hotel represent a site of State significance warranting the intervention of the State Government to ensure that these assets are preserved and enhanced, particularly with many 2006 Commonwealth Games events to be held at the adjacent Melbourne Cricket Ground, Flinders Park tennis complex and Olympic Park athletic complex.'

1. It would not be unlikely that a similar letter was sent to other ministers, such as the Premier and the Minister for State and Regional Development.
2. There is no evidence as to whether the Minister for Planning read the PCH letter of 13 October 2004. However the Minister's department was clearly aware of the letter. Mr John Phillips, a senior manager with the department, gave evidence that on or about 19 October 2004 he was asked to advise the Minister in relation to the letter. Further, on 18 November 2004 Mr Phillips attended a meeting with senior officers of the Department of Industry, Innovation and Regional Development at which PCH's request was discussed. Mr Phillips gave evidence that at this meeting he was told that Thakral had stated that the refurbishment of the Hilton Hotel could be completed before the Commonwealth Games were staged. Then, on 26 November 2004, relevant officers prepared a ministerial briefing note concerning Amendment C93 in which they recommended that a letter be forwarded to the City of Melbourne about that amendment. In this briefing note the department officers noted the letter from PCH and indicated that it was consulting with "other parts of government" on the strategic significance of the PCH proposal.
3. Mr Phillips gave evidence that on 26 November 2004 he attended a meeting with Mr Kolomanski and Mr Kevin Love, a deputy secretary of the Department of Sustainability and Environment. At this meeting Mr Kolomanski explained the proposed development and made a case for government intervention to allow the projects to proceed without further delay. Mr Phillips' evidence was that, at this meeting, Mr Kolomanski said that government intervention was required if the refurbishment of the Hilton Hotel was to be completed before the staging of the Commonwealth Games.
4. In the meantime, PCH was fighting yet another battle with the East Melbourne Group on yet another battleground. The East Melbourne Group had nominated the MCG Hotel as a building which ought be included in the Victorian Heritage Register pursuant to the Heritage Act 1995. The Registrations Committee of the Heritage Council held a hearing on 22 October 2004 and made its decision in November 2004. In substance, the Registrations Committee decided that the MCG Hotel did not warrant inclusion in the Victorian Heritage Register, although it also decided to refer the matter to the City of Melbourne for consideration of an amendment to the planning scheme concerning the heritage qualities of the building. PCH was represented at the hearing before the Registrations Committee by Mr Ian Pitt SC, who, in turn, relied upon evidence of Mr Peter Lovell, a heritage expert. The Registrations Committee prepared an explanatory note of its decision. This note recorded the following in relation to the submissions by Thakral:

'Mr Pitt SC noted that at an earlier VCAT hearing on the MCG Hotel, Graham Butler [another heritage expert], had noted that the Hotel appeared to date from 1863. He stated that on the basis of a Notice of Intention to Build dated May 1859, the meeting in 1859 to write the rules of football could not have been held in the existing building. He said there is no identification of any fabric which demonstrates any association. He submitted that it was mere speculation that the event took place in the existing building.

Mr Lovell went on to elaborate on this theme noting that the Rules of Football were written in May 1859, while the Hotel was being rebuilt in the period 1859 to 1863 and the surviving fabric is not associated with this event.'

'Mr Pitt SC concluded that the nomination is not warranted as the hotel does not demonstrate the associations on which the East Melbourne Group relies.'

1. Essentially the Heritage Council Registrations Committee accepted Mr Lovell's evidence that the hotel was being rebuilt in the period 1859 to 1863. It was not convinced that the hotel was built to a sufficient state of completion between 1858 and 1863 to allow the rules of football to be written on the existing premises; neither was it convinced that the extant fabric has any definable links to the purported writing of those rules. It added:

'Even if it were so convinced, the Committee is of the view that the building fabric that remains can in no way be directly associated with or demonstrate to the public the cultural event of the writing of the rules of Australian Football.'

1. On 19 November 2004 PCH lodged an application to VCAT to review the failure of the City of Melbourne to make a decision within the prescribed time to grant a permit for the MCG Hotel redevelopment. Subsequently this application was listed for hearing by VCAT in February 2005. However, as a result of the events the subject of this proceeding, that hearing did not take place.
2. On 30 November 2004 Mr Phillips received a telephone call from Ms Melinda Catlow a town planner employed by Contour Consultants Australia. Ms Catlow told Mr Phillips that she had been retained by PCH to support its request for an amendment to the Melbourne Planning Scheme by preparing draft documents for consideration by the department. On 7 December 2004 Mr Phillips met with Ms Catlow and Mr Kolomanski to discuss the preparation of documents; and, later that day, Mr Phillips sent an email to Ms Catlow attaching precedents which might assist Ms Catlow in preparing draft documents for the department's consideration.
3. On 8 December 2004 PCH provided Mr Phillips with copies of draft project schedules for the redevelopment of the MCG Hotel site, the refurbishment of the Hilton Hotel, the restoration of Mosspennoch House and the erection of an apartment building adjacent to Mosspennoch. These project schedules showed the apartment building on the MCG Hotel site, as well as the restoration of Mosspennoch House and the construction of the apartment building adjacent to Mosspennoch House, as being completed in the last quarter of 2006. However the draft project schedule for the refurbishment of the Hilton Hotel showed this to be completed in March 2006. On 10 December 2004 a revised project schedule for the Hilton Hotel refurbishment was forwarded to Mr Phillips. This showed that the refurbishment would take 145 days in total and would be completed by 14 December 2005.
4. On 9 December 2004 Mr Phillips again met with Mr Kolomanski and Mr Love to discuss the proposed amendment. At this meeting Mr Love asked Mr Kolomanski what undertakings PCH could give the government in relation to proceeding with the refurbishment and redevelopment of the Hilton Hotel if the Minister was prepared to amend the scheme without notification. There would appear to have been previous discussions about the question of undertakings as various draft letters had been prepared by PCH outlining certain undertakings. The final version appears to be a letter dated 10 December 2004 from PCH to Mr Love. This letter states:

'Thakral wishes to support the 2006 Commonwealth Games by refurbishing the 5 star Hilton-on-the Park Hotel and increase the capacity with longer stay suites and apartments to be constructed over the Ballroom. The new apartment style facilities will be linked directly into the main hotel at levels 2 and 3. The majority of apartments will be sold subject to management agreements. The proceeds of the sales will be used to fund the refurbishment of the Hilton-on-the Park and the MCG Hotel.

The MCG Hotel will be refurbished and the façade faithfully restored as a priority project. It is expected to be open for Christmas 2005. The MCG Hotel will be themed to continue its long association with Australian Rules Football, where it is widely believed that the first rules of the game were drafted in the May 1859.'

'Thakral Holdings Limited, subject to the final approval of the Board, is prepared to give the following undertakings to the Government of Victoria. The undertakings are subject to Thakral being granted all necessary and timely development/construction approvals consistent with Planning Permit Application TP04/0638 to the Melbourne City Council (in full) prior to 1 January 2005:-

1. To refurbish and maintain operation of the Hilton on the Park, using its best endeavours to complete the refurbishment of the hotel prior to the 2006 Commonwealth Games. . [sic] The Management Agreement currently in place with Hilton Hotels of Australia Pty. Ltd. and Hilton International is valid up to 1 April 2034, subject to usual commercial conditions. The on-going operation of the Hotel would be subject to maintenance of commercial returns acceptable to Thakral;
2. To refurbish and restore the MCG Hotel in accordance with the aforementioned Planning Permit Application TP04/0638 and to facilitate the on-going operation of the MCG Hotel subject to maintenance of commercial returns acceptable to Thakral;
3. To restore Mosspennoch House, in accordance with plans and specifications approved by Heritage Victoria by way of permit, for conversion to 6 residential apartments which would be offered for sale to the public.'
4. On 9 December 2004 Ms Catlow sent an email to Mr Phillips attaching various drafts of documents she had prepared in relation to the amendment. On the following day Ms Catlow sent a further email to Mr Phillips, attaching drafts which had been revised by Mr Kolomanski. These draft documents consisted of a draft of the Minister's reasons for using the power of intervention contained in section 20(4) of the Act, an explanatory report for the amendment, and a draft of a document to be incorporated into the planning scheme.
5. It would seem to be about this time that consideration was first given to including in any approval the restoration of Mosspennoch and the construction of an apartment building adjacent to Mosspennoch. Thus on 10 December 2004 Mr Kolomanski sent an email to Mr Phillips enclosing a copy of a draft elevation of the new building, then described as 'Mosspennoch Stage 2'. Mr Kolomanski said:

'This is just an illustration and subject to a lot more design and consultation.'

1. On 11 and 12 December 2004 (a Saturday and a Sunday) Mr Phillips prepared a draft of a planning scheme amendment report for the Minister and finalised associated amendment documents. On 13 December 2004 these documents were sent to Ms Catlow for review. Also on that date Mr Kolomanski responded to a request and paid a fee of $1,860 in relation to the planning scheme amendment. On 14 December 2004 Ms Catlow obtained the advice of Mr Ian Pitt SC as to the content of the amendment. Mr Pitt received his instructions at 2:53pm on that day and responded by 3:30pm, with a succinct advice in seven paragraphs. In turn Ms Catlow forwarded this on to the department. It was all systems go.
2. Also on 11 and 12 December 2004 Mr Phillips prepared a briefing to the Minister about the proposed amendment. Before preparing the briefing Mr Phillips was informed by an officer of the Department of Innovation, Industry and Regional Development that the Minister for State and Regional Development, Mr John Brumby, would be writing to the Minister for Planning requesting that the Minister facilitate the redevelopment. In anticipation of this letter being received, reference was made to it in the ministerial briefing. The letter was received on 14 December 2004.
3. On 14 December 2004 Mr Phillips finalised the various documents and forwarded them to the Minister for Planning. These documents included a ministerial briefing note, a minute of a decision to prepare an amendment, a minute of the preparation of the amendment, a minute of the adoption and approval of the amendment, a copy of the amendment, a copy of the explanatory report to the amendment, a copy of the document to be incorporated into the planning scheme by the amendment (entitled 'Hilton on the Park Hotel Complex Redevelopment, December 2004'), plans of the redevelopment prepared by Peddle Thorpe Architects, plans of the Mosspennoch apartment building prepared by SJB Architects, plans of the Mosspennoch refurbishment prepared by Allom Lovell & Associates, plans of the MCG Hotel refurbishment prepared by Allom Lovell & Associates, and a copy of reasons of the Minister for the decision to use her power of intervention. Mr Phillips also prepared a planning scheme amendment report, although it is not clear whether this was provided to the Minister.
4. In the ministerial briefing note Mr Phillips recommended that the Minister agree to prepare, adopt and approve the amendment under section 20(4) of the Act, without notice, by signing the amendment documents. He also recommended that the Minister sign the explanation of the Minister's reasons for intervention.
5. Mr Phillips gave evidence that, in preparing the ministerial briefing, he was aware that an important element of the proposed redevelopment was the internal refurbishment of the Hilton Hotel. However, as the refurbishment did not need planning permission, it was not specified in the amendment.
6. The Minister adopted the recommendation made by Mr Phillips on 14 December 2004 and approved the various documents placed before her by Mr Phillips. The approval of the amendment was published in the Government Gazette on 16 December 2004, at which time the amendment came into force. On 16 December 2004 the Minister made a media release, announcing her decision to approve the amendment. I will make findings about and discuss these documents in the context of dealing with the plaintiff's principal contention.[141]

209 It will be appreciated that, although the land the subject of the amendment included the Hilton land, nothing which was intended to be done to the Hilton itself - that is, its refurbishment - necessitated such an amendment. The amendment was, however, critical to the plans of PCH to demolish the rear of the MCG Hotel, build a large apartment building to the north-east of the Hilton, construct a building to the rear of the Hilton - that is, between the Hilton tower and Mosspennoch; and undertake certain work to Mosspennoch.

210 Before going on, we should refer to a document entitled 'Adoption and Approval Under Section 20(4)'. It was signed by the Minister. It said this:

HAVING prepared Amendment C101 to the Melbourne Planning Scheme in accordance with Section 8 of the Planning and Environment Act 1987;

• had regard to, in accordance with section 12(23)(a) of the Act, the Minister's directions, and
• had regard to, in accordance with section 12(2)(aa) of the Act, the Victoria Planning Provisions, and
• had regard to, in accordance with section 12(2)(ab) of the Act, any municipal strategic statement, strategic plan, policy statement, code or guideline which forms part of a scheme, and
• taken into account, in accordance with section 12(2)(b) of the Act, any significant effects which I consider the amendment might have on the environment or which I consider the environment might have on any use or development envisaged in the amendment;

1. exempt myself, in accordance with Section 20(4) of the Act, from the requirements of Sections 17, 18 and 19 of the Act and the Regulations for the amendment because I am satisfied that:
   • compliance with any of these requirements is not warranted;
   • the interests of this part of Victoria make such an exemption appropriate;
2. adopt the amendment without changes in accordance with Section 29 of the Act;
3. approve the amendment without changes in accordance with Section 35 of the Act.

It is noteworthy that the Minister stated that she was 'satisfied' of each of the circumstances, disjunctively expressed in s 20(4), which can justify exemption; and that she assigned no reason for being so satisfied.

The significance of the Minister's reasons for exercising the discretion to exempt. The appellant's case.

211 On or about 14 December 2004 the Minister released a number of documents into the public domain. In addition to the amendment itself, there was (1) a document entitled 'reasons for decision to use power of intervention' ('the public reasons'); (2) an explanatory report ('the report'); and (3) an 'incorporated document' entitled 'Hilton on the Park Complex Redevelopment December 2004' ('the incorporated document'). As we have earlier noted, each of those documents had been prepared in the first instance by PCH's planning consultant; and, to some extent, each had undergone revision in consultation between the consultant and departmental officers.

212 On 16 December 2004 the Minister issued a press release.

213 The appellant pleaded that the reason for the Minister's exercise of discretion to exempt the amendment from the notification process was disclosed by the public reasons. It pleaded that consideration of that document compelled a conclusion that the decision to exempt was vitiated; and that with it went adoption and approval of the amendment.

214 Although the appellant's pleaded case focused upon the public reasons, the appellant also called in aid the report and the incorporated document. It contended that each of those documents, so far as it addressed the exemption question, was consistent with the public reasons in what it disclosed to be the reason used by the Minister to justify her exercise of discretion.

215 At trial, it seems, some reliance was also placed upon the press release as a document disclosing the reason for the Minister exercising her discretion to exempt. The learned judge below referred to the press release in his reasons for judgment. On appeal, however, counsel for the appellant eschewed reliance upon that document.

216 The primary argument at trial and in this Court was whether the public documents published by the Minster, most particularly the public reasons, did identify, as an operative reason for the exercise of the s 20(4) discretion, the reason which the trial judge identified. The respondents joined issue below as to what was revealed by the public reasons, and the other public documents, to be the reason for the Minister's exercise of the exemption discretion. Counsel for the Minister contended before the trial judge that there was some 'looseness' of language in the public reasons and other documents. It could explain why what appeared to be the reason why the exemption discretion had been exercised was not in fact the case. But if that was wrong, then the documents were ambiguous.

217 On the appeal, there was a muted submission to the effect that the apparent finding of the trial judge as to the reason publicly stated by the Minister for her exemption decision was not a reason at all - only an 'impression'. But as we have earlier noted, there was no argument against the proposition that, if the reason which his Honour identified had been a materially operative reason, then it was utterly implausible; that is, it was incapable of justifying the exercise of the Minister's discretion. It was because that reason was so implausible, and would constitute 'Wednesbury unreasonableness', that counsel for the Minister and PCH sought to show, in the first instance by a detailed examination of all the material published by the Minister at the time of her decision, that her reason or reasons were otherwise;[142] and why they contended, in the second place, that recourse should be had to departmental documents in order to ascertain the Minister's 'true' reasons for exercising her discretion.

The Trial Judge's Conclusion as to the Import of the Public Documents

218 The learned judge first examined the public documents. He was conscious that he should avoid an overzealous examination, or adopt a construction which was founded on too keen a search for error. He concluded:

I find that the overall impression that was intended to be created by the public documents recording and explaining the Minister's decision to exempt herself from the notification requirements of the Act was that such a course was necessary for providing additional accommodation for the Commonwealth Games. And I think that impression is created. It is true that if one mines down into the public documents an informed person may detect that the Commonwealth Games is only relevant in relation to the refurbishment of the Hilton Hotel and the restoration of the MCG Hotel, neither of which would provide any additional accommodation. But the statement in the incorporated document that the purpose of the site specific control is to facilitate the redevelopment and expansion of the Hilton on the Park complex as tourist accommodation in a timely manner in order to be available for the Commonwealth Games can only be understood as including the proposed serviced apartments at the rear of the MCG Hotel land, as this is the only real 'expansion' of the hotel complex facilitated by the amendment. Further, the Minister's reasons for exercising the power of intervention can only be understood as meaning that the proposed 'combined development', including the 'proposed expansion' of the hotel, were of genuine State significance because they would contribute to the timely provision of accommodation for the Commonwealth Games. And the statement in the media release that 'this project will be finished in time for the 2006 Commonwealth Games', whilst lacking precision about the content of 'this project', should be taken to have included the expansion of accommodation opportunities by the erection of serviced apartments. Those statements cannot be regarded, as [counsel] for the Minister submitted, as mere 'looseness' of language. [143]

The Departmental Documents. Conclusion of the Trial Judge

219 There were, in addition to the public documents, departmental documents. The trial judge identified as relevant departmental documents[144] a letter written by PCH to the Minister dated 13 October 2004, a letter written by PCH to the department dated 10 December 2004, and a ministerial briefing note dated 14 December 2004.

220 His Honour held that 'the departmental documents are also relevant in explaining the Minister's decision.'[145]

221 The appeal was conducted on the basis that his Honour held that the reason for the exercise of the exemption discretion which he had identified in the public documents was not the real reason for the Minister's exercise of discretion; but that, having regard to departmental documents, two different reasons (which we shall call 'the true reasons') were disclosed for the Minister's decision. The 'main purpose' which his Honour identified was to put 'PCH in a position where it could proceed with the expansion of the Hilton Hotel without having its proposal subject to the normal scrutiny involved in a planning appeal hearing.' One explanation for this, which his Honour could not exclude, was that 'the Minister regarded the development as economically important to Victoria and she wished to promote it by making development approval more certain.'[146] The second purpose which he identified was that 'the approval would facilitate the refurbishment of the Hilton Hotel in a timely manner for the Commonwealth Games.'[147]

222 Thus, on his Honour's analysis, the only reason publicly advanced by the Minister was that the exemption would secure additional accommodation for the Commonwealth Games - which, as his Honour explained, could only mean that part or all of the additional accommodation proposed by PCH would be completed by that time; whereas there were in truth two reasons, neither of which was the reason publicly stated.

223 The judge proffered an explanation why a reason which was not a true reason for the exemption decision had been publicly stated:

I further find that the Minister found it politically desirable to justify the intervention, not by reference to the main purpose for the exercise of the powers, but by reference to the Commonwealth Games. This desire was difficult to implement because the development requiring approval would not be ready in time to provide additional accommodation for the Games.[148]

The Chief Justice's Analysis of the Import of the Public and Departmental Documents

224 The learned Chief Justice, whose draft reasons we have had the advantage of reading, has concluded that the public documents 'might indeed put a gloss or 'spin' on the reasons for the decision', but that this did not amount to a fundamental alteration or contradiction; that the public documents and the departmental documents 'reveal a strong consistency in approach,' the differences being 'largely 'style,' and 'not of substance;'[149] and that Minister decided to exercise her powers 'based on the dual purposes held by the trial judge,' it being not unreasonable for her to do so.[150] But her Honour has also concluded, as we understand it, that the two 'true' reasons identified by the learned trial judge emerge from a consideration of all the documents, public and departmental, it being 'necessary for the trial judge to have regard to all information before the Minister to ascertain the basis for her decision'.[151] Her Honour's analyses thus exclude the provision of additional accommodation in time for the Commonwealth Games - which according to the finding of the trial judge was the reason to be discerned from the public documents - as a reason for the exercise of the exemption discretion.

225 In Re Minister for Immigration and Multicultural and Indigenous Affairs, ex parte Palme[152] Kirby J observed:

The rationale of the obligation to provide reasons for administrative decisions is that they amount to a 'salutary discipline for those who have to decide anything that adversely affects others'. They encourage 'a careful examination of the relevant issues, the elimination of extraneous considerations, and consistency in decision-making'. They provide guidance for future like decisions. In many cases they promote the acceptance of decisions once made. They facilitate the work of the courts in performing their supervisory functions where they have jurisdiction to do so. They encourage good administration generally by ensuring that a decision is properly considered by the repository of the power. They promote real consideration of the issues and discourage the decision-maker from merely going through the motions. Where the decision effects the redefinition of the status of a person by the agencies of the State, they guard against the arbitrariness that would be involved in such a redefinition without proper reasons. By giving reasons, the repository of public power increases 'public confidence in, and the legitimacy of, the administrative process'. (Footnotes omitted).[153]

226 The giving of reasons thus provides 'an effective means of detecting the kind of error which would entitle the court to intervene.'[154] For a statement of reasons to serve these ends, one would ordinarily rely on what the decision-maker says were the reasons for the decision.

227 The Minister's public reasons were provided as will be seen, in pursuance of a so-called 'Practice Note'. Whilst, for the purposes of Parliament's consideration whether an amendment should be disallowed under s 38 of the Act, the Minister was required to provide a document to Parliament entitled Notice of Approval of Amendment to Planning Scheme, and whilst reasons provided pursuant to the Practice Note constituted a different document, such reasons would facilitate Parliament's understanding why the Minister had dispensed with the notification process, and its consideration whether the amendment should be disallowed, as well as providing the interested public with such information and aiding the process of curial review.

228 In our view, reasons are no less important where an authority, though not under a statutory duty to provide reasons, provides reasons to explain the discretionary exercise of a statutory power. Where the authority gives reasons for its decision, the court may act upon them if they demonstrate an erroneous approach to an exercise of power.[155] But like reasons given pursuant to a statutory obligation, reasons voluntarily provided should not be overzealously scrutinised.[156]

229 We must adopt a 'beneficial construction' of the reasons[157] and not be concerned with looseness in the language nor with unhappy phrasing. The reasons are meant to inform. But the caution against construing 'with an eye keenly attuned to perception of error', stated by the High Court in Liang[158] may be of more limited significance if the reasons have been formulated carefully and deliberately with the possibility of judicial review clearly in mind.[159]

230 In the event, we should begin by examining the content of the public documents. This Court, we should add, is under no disability, by comparison with the trial judge, in undertaking that task.

231 The amendment itself was relevantly silent except that it referred, in a Schedule, to an incorporated document titled 'Hilton on the Park Complex Redevelopment, December 2004', of which document more below.

232 Pursuant to a protocol embodied in a so-called 'Practice Note' dated November 2004, the Minister provided reasons for her decision to intervene in this matter. The intervention, it must be remembered, was in two parts: first, the decision to exempt; second, the decision to adopt and approve the amendment. The former decision would not sensibly have been taken had the latter decision been in doubt. The two aspects of the intervention were separate but inter-related features. The reasons must be read with that in mind.

233 The practice note had no legislative standing. But in content it was designed to ensure, inter alia, that the Minister would provide written reasons explaining decisions to exercise power -

to amend a planning scheme, with exemption from notice requirements, or to expedite an amendment to a planning scheme, under section 20(4) of the [Act].

234 The practice note posed, and then answered, the question: 'When will the Minister consider using these powers?' The question and answer addressed the Minister's use of powers other than those confided by s 20(4) - powers to expedite an amendment under s 185A of the Act, to call-in an outstanding planning permit application under s 97B of the Act, and to call-in a matter then before the Victorian Civil and Administrative Tribunal under clause 58 of Schedule 1 of the Victorian Civil and Administrative Tribunal Act 1998. The answer, necessarily non-specific, stated that 'the following criteria will usually be relevant':

1. The matter will be one of genuine State or regional significance. Such situations may include, for example, those:

∙ where the determination of the application may have a substantial effect on achievement or development of State or regional planning or heritage objectives;

∙ which raise a major issue of State or regional policy or public interest such as the implementation of Melbourne 2030 objectives;

∙ which could have significant effects beyond their immediate locality.

1. The matter will give effect to an outcome where the issues have been reasonably considered and the views of affected parties are known.
2. The matter will be the introduction of an interim provision or requirement and substantially the same provision or requirement is also subject to a separate process of review (such as the introduction of permanent controls in a planning scheme).
3. The matter will raise issues of fairness or public interest, where:

∙ the mechanisms of the planning process have created a situation that is unjust, unreasonably causes hardship or is clearly in error;

∙ anomalous provisions apply and the valid intent is clearly evident or simple inconsequential correction is required;

∙ there is a need for urgency and the public interest would be served by immediate action;

∙ the matter is unlikely to be reasonably resolved by the processes normally available.

1. The matter requires co-ordination to facilitate decision-making by more than one agency.

As an overriding consideration, Ministerial powers will only be exercised having regard to and within the confines of, the legislative provision in question.

235 A number of those criteria had no obvious connection with a contemplated exercise of power under s 20(4). Moreover, the document's description of the power confided by that subsection was apt to lead to lead to consideration of the power to exempt being conflated with consideration of the desirability of the amendment, or of development permitted by the amendment.

236 In accordance with the Practice Note, the Minister provided reasons - by intent, for the decision to exempt. They were, in one respect, misleading by omission. They suggested, in effect, that the decision to intervene had been prompted by a letter from the Minister for State and Regional Development dated [blank] December 2004. Such a letter was written. But it is very clear that the real impetus for the course which the Minister took was the joint work of PCH, its professional advisers, and the Department.

237 The learned trial judge, who reached the conclusion, akin to our own, that the public reasons 'disguise[d] the identity of the person who really initiated the request, that is PCH', held that he was 'not persuaded that anything turns on this'. But in our view, the matter is of some significance. Of this, more later.

238 Under the heading 'Background', the Minister said this in her reasons:

8. The combined development plans will enable significant quality accommodation to be provided in close proximity to the prime Commonwealth Games venue at the MCG. It is a site that warrants comprehensive plans for retention of heritage components and built form infill.

The proposed expansion of the Hilton on the Park Hotel and the refurbishment will also ensure the quality accommodation is provided in a timely manner to accommodate the demands anticipated for the Commonwealth Games.

On this basis, the development is considered to be of genuine State significance which raises a major issue of State policy and public interest. (emphasis added)

239 The 'significant quality accommodation' which was to be provided in a 'timely manner' for the Commonwealth Games included, in terms, both 'expansion' and 'refurbishment'.

240 Then, under the heading 'Reasons for Intervention', the Minister recapitulated a good deal of what was set out in the explanatory report, a document to which we refer hereafter. Thus, the proposed development would achieve the policies of the Melbourne 2030 Strategy, was consistent with the State Planning Policy Framework, and would achieve the policy aims and objectives described in the Municipal Strategic Statement - City Plan.

1. I am satisfied that the proposed development and the amendment raises a major issue of genuine State significance and public interest and will have significant effects beyond the immediate locality. The second and third matters set out under Criteria 1 of the Practice Note are satisfied for the following reasons:
   • The proposal reinforces the role of Melbourne as a primary tourism destination.
   • The construction of the new accommodation and upgrade of the existing accommodation will involve an investment of approximately $86 million dollars and will have substantial positive flow-on effects for the Victoria economy.
   • The hotel refurbishment will be completed in time for the 2006 Commonwealth Games to be hosted in Melbourne. In turn this facility will raise the image and profile of Melbourne and improve the backdrop to the MSG and the sporting precinct surrounding.
   • The development will include the practical application of innovative ESD and energy efficiency principles which will have cost savings in terms of operation and maintenance,
   • The proposal will (sic) an attractive gateway to the Central Activities District and reinforce the boulevard role of Wellington Parade through appropriate built form, improved street frontages, improved surveillance and safety to public spaces.
2. Given the Hilton on the Park Hotel redevelopment project contributes to the accommodation offer available in Melbourne for the Commonwealth Games in a timely manner, I believe it is necessary to avoid delays which may result from the giving of notice, by exempting the project from the provisions of the Melbourne Planning Scheme.

242 It is, we think, clear that most of the 'reasons for intervention' were not concerned with the basis for exemption but were intended to meet the criteria set out in the practice note which related to reasons for approval of an amendment. They simply stated that the proposed use and development was consistent with various planning objectives and policies. Such reasons provided justification the Minister's decision to adopt and approve the amendment.

243 On the other hand, there are a number of passages from the reasons which we have cited that do bear, at least in part, upon the exemption decision. Something more must be said about each of those passages.

244 The first passage, paragraph numbered 8, emphasised expansion and refurbishment of accommodation in time for the Commonwealth Games as a basis for concluding that the development was of 'genuine State interest', raising a major issue of 'State policy and public interest.' That is so despite reference to the site warranting 'comprehensive plans for retention of heritage components and built form infill', a matter which bore upon the desirability of the development permitted by the amendment.

245 The second passage, paragraph numbered 18, identified five considerations, of which the 'hotel refurbishment' was only one, as bearing upon 'genuine State significance and public interest'. The other four matters involved the desirability of the development for planning reasons, and in one instance an economic benefit. That paragraph, on its face, addressed the desirability of the amendment, rather than the question why the Minister should exempt the amendment from the notification process.

246 We turn to the third passage, paragraph numbered 19. It assigned a single reason for the decision to exempt - the necessity to avoid delays in order to enable contribution by the project 'to the accommodation offer available in Melbourne for the Commonwealth Games in a timely manner.' It was, in our opinion, the only paragraph in the public reasons which specifically addressed the exemption decision - although paragraph 8 inferentially did so.

247 The conflation of the discretion conferred by s 20(4) with the apprehended reasons why the amendment should be adopted and approved is emphasised by the Minister's conclusions at paragraphs 20 and 21 of her reasons. At paragraph 20, she stated reasons why the amendment which would permit the proposed redevelopment met criteria numbered 1, 2 and 4 in the practice note. Thus:

I believe that the approval of Amendment C 101 to the Melbourne Planning Scheme, in order to facilitate the Hilton on the Park Hotel and Mosspennoch House site redevelopment, meets the following criteria contained in the Ministerial Powers of Intervention in Planning and Heritage Matters Planning Practice Note:

∙ Criteria 1 - The matter is one of genuine State Significance:

∙ Where the determination of the request to amend the Melbourne Planning Scheme will have a substantial effect on the achievement and development of State or regional planning objectives and policies;

∙ Which raises a major issue of State or regional policy or public interest; and

∙ Which will have significant effects beyond their immediate locality.

∙ Criteria 2 - The matter will give effect to an outcome where the issues have been reasonably considered and the views of affected parties are known.

∙ Criteria 4 - The matter raises issues of public interest where:

∙ There is a need for urgency and the public interest would be served by immediate action to facilitate the re-development of the site.

∙ The matter is unlikely to be reasonably resolved by the processes normally available.

In view of the above matters, in exercising my power under Section 20(4) of the Act to exempt myself from the requirements of sections 17, 18 and 19 of the Act and the Regulations for Amendment C 101, I am satisfied that -

∙ Compliance with any of these requirements is not warranted, and

∙ The interests of this part of Victoria make such an exemption appropriate.

249 The difficulty with that conclusion is that, except for the matter referred to in first dot point in respect of criteria 4, the matters called in aid were all concerned with the desirability of the proposed development; and even that matter was stated in a paragraph which dealt with such desirability.

250 In paragraph, 22 the Minister stated that she had decided to exercise her power under s 20(4) of the Act 'to approve Amendment C101' - which is not the subject-matter of the subsection. But that does not necessarily show that Minister was confused about what was achieved by an exercise of discretion under s 20(4). The learned trial judge, with his very extensive knowledge of planning law, noted that 'it is common practice to describe an amendment to which [a s 20(4)] exemption applies as a[n] amendment under [that subsection]'.[160] The real point is that, in our opinion, examination of the public reasons shows that the Minister assigned a single reason for exercising her discretion to exempt under s 20(4).

251 What was that reason? The Minister referred at paragraph 8 to expansion and refurbishment of accommodation in time for the Commonwealth Games. The third dot point at paragraph 18 referred to the hotel refurbishment being completed by that time. But then paragraph 19, spoke of 'the redevelopment project contribut[ing] to the accommodation offer available' at the time of the Games - an apparent reference to the use and development of land which necessitated the amendment.

252 The dot points in paragraph 18 are a summary of each discrete part of the development. When read in conjunction with paragraphs 8, and 19 and those parts of the incorporated document and the explanatory report to which we later draw attention, we consider that the Minister's public reasons tied the necessity to avoid the delay to the provision of accommodation which would result from a combination of expansion and refurbishment by the time of the Commonwealth Games.

253 The 'Incorporated Document' describes a document which was incorporated in the Melbourne Planning Scheme pursuant to s 6(2)(j) of the Act. By that sub-section, a planning scheme may 'apply, adopt or incorporate any document which relates to the use, development or protection of land.' Although, in our opinion, it is not significant in the resolution of the appeal, it is thus the fact that, unlike the reasons given pursuant to the practice note, the incorporated document had a statutory basis.

254 The incorporated document was not signed by the Minister, but it was repeatedly stamped 'Approved by the Minister of Planning on 14 Dec 2004.'[161]

255 The document described the entire project. It was concerned with the amendment, and so addressed the situation which existed after the amendment had been adopted and approved. It did not focus, therefore, upon the antecedent exemption. Unsurprisingly, it did not assign, in terms, a reason for the Minister's decision to exempt the amendment from the notification process. But it did state a purpose for the site specific control which, in part, may be said to cast some light on the reason for the decision to exempt. Thus:

• To facilitate the redevelopment and expansion of the Hilton on the Park Hotel Complex as tourist accommodation in a timely manner in order to be available for the Commonwealth Games.
• To encourage urban design solutions which recognise the significance of Wellington Parade as a boulevard entrance to Melbourne Central Activities District and the importance of the heritage buildings on the land.(emphasis added)

256 The first stated purpose had a feature of urgency. It could not be understood otherwise than as suggesting that both the refurbishment of the existing hotel and construction of the proposed new buildings were to be completed in time for the Commonwealth Games in March 2006. Thus the reference to 'expansion' of the 'complex' as 'tourist accommodation' to be available for the Games.

257 The second stated purpose suggests a planning rationale not attended by any urgency. Such purpose would have been relevant to the Minister's decision to adopt and approve the amendment. We could not agree that it constituted an expressed reason for the exercise of the exemption discretion. Further, it is not one of the two 'true' reasons identified by the trial judge and agreed in by the learned Chief Justice.

258 The document stated that it allowed the demolition, use or development of the land comprised in the three titles to which we have earlier referred in accordance with specified plans. None of the plans addressed the internal refurbishment of the Hilton Hotel. That was doubtless because, as we observed earlier, the proposed refurbishment did not require passage of the amendment.

259 The document further stated that 'use and development of the land may be undertaken in stages'. It specified also that, subject to approval of a request for extension, the approval would expire if:

• The refurbishment of the Hilton on the Park Hotel is not commenced by 1st October 2005.
• The restoration of the MCG Hotel is not commenced by 1st October 2005.
• The development is not completed by 31st December 2008.

260 Concerning that part of the incorporated document, these points may be made.

261 The first circumstance, commencement of refurbishment of the Hilton by 1 October 2005, meant that approval would lapse if a step which did not require passage of the amendment was not taken.

262 The first and second circumstances dealt with a date of commencement, not completion. It could not be concluded that either of them showed that the first stated purpose could not have meant what it said.

263 The third circumstance plainly implied that some part of the project would not be completed by March 2006. In that connection it may be observed that no start date was set for the restoration of Mosspennoch, or for the proposed development between the Hilton tower and Mosspennoch. In the event, this circumstance did not plainly show that the first stated purpose did not mean what it said.

264 The report, headed 'Planning and Environment Act 1987 Melbourne Planning Scheme Amendment C101 Explanatory Report', also concerned the amendment itself. Like the incorporated document, it addressed the situation after the amendment had been adopted and approved. Like the incorporated document, it appears to have been a document adverted to by the Act. See s12(1)(e). It is thus understandable that it specified 'why the amendment is required.' We consider, however, that what was said under that heading casts light upon the Minister's reason for exempting the amendment from the notification requirements of ss 17-19 of the Act. Thus:

The Amendment is required to facilitate the refurbishment and redevelopment of the Hilton on the Park Hotel and surrounding properties and restoration of the historic MCG Hotel and Mosspennoch house, to enable their commencement and or substantial completion in time for the Commonwealth Games in 2006.

265 Three points should be made. First, the passage drew a distinction between refurbishment and redevelopment.

266 Second, the reference to 'commencement and/or substantial completion' was at least strange.[162] If all that had been contemplated was commencement of the works 'in time for' the Commonwealth Games, the expressed reason why the amendment was required made no sense. The same may be said if the conjunctive 'and' was red-pencilled. On one view, the disjunctive 'or' should be ignored.

267 That conclusion is supported by what the report said upon the question 'How does the amendment implement the objectives of planning in Victoria?' Thus:

The Amendment will facilitate the timely extension and upgrading of significant accommodation facilities in close proximity to key Commonwealth Games venues, will protect and enhance buildings of historic or cultural interest and will improve the environment for Victorians and visitors to Victoria. (emphasis added).

268 Later, however, specifying the alleged 'economic and social benefits resulting from the amendment', the report referred to 'the provision of a five-star hotel ... in time for the commencement of the Commonwealth Games, enhancing the range of accommodation available to visitors to Victoria'. This was consistent with an understanding that there would be an upgrading of accommodation in time for the Games, but that additional accommodation would not be available by that time.

269 Whilst there may be an element of tension in these various passages, in our opinion, read as a whole, the document is relevantly to the effect that the amendment would bring about more, not simply better, accommodation for Commonwealth Games visitors.

270 The third point which emerges from the report's specification as to why the amendment was required is this: the report said nothing about any other operative planning consideration.

271 It is, however, the fact that in the passage which we last cited the report did refer to -

• the protection and enhancement of buildings of historic or cultural interest; and

• improvement of the environment for Victorians and visitors to Victoria.

Further, under the 'economic and social benefits' heading, the report referred to -

• the investment of about $86 million in quality accommodation, with significant flow-on effects for the Victorian economy; and

• the direct benefit of jobs during the construction phase, and thereafter.

Further still, the Report asserted that the use and development affected by the development was supported by the 'Metropolitan Strategy - Melbourne 2030' in a number of ways; that 'the development of the Hilton on the Park Hotel and surrounds' was consistent with the State Planning Policy Framework in many respects; and that the permitted development and uses were consistent with the City of Melbourne's Municipal Strategic Statement.

Finally we note that, at the end of the lengthy recitation of reasons why the use and development permitted by the amendment had favourable economic implications, and was 'supported by' or was 'consistent with' various planning objectives, the Report, under the heading 'Does the Amendment make proper use of the Victorian Planning Provisions?', stated that -

The amendment utilises the site specific provisions which are intended for proposals that do not fit the general provisions. The urgency of the project and its value to the State in the provision of facilities for the Commonwealth Games warrant the use of these provisions.(emphasis ours)

272 In all, the report spoke a good deal about the ways in which the permitted use and development would fit in with planning objectives and policies. In doing so, it employed planning terminology to support the outcome of the amendment, not to support the exemption from notification. That is, the particular circumstances were used to justify the adoption and approval of the amendment. On the other hand, so far as the report cast light upon the Minister's decision to exempt, we consider that what was said under the headings 'Why the Amendment is required' and 'Does the Amendment make proper use of the Victoria Planning Provisions?' provides some guidance. In each instance, the urgency of the project was stressed; and in each instance, fairly read, the urgency was tied to both the extension and upgrading of accommodation facilities in time for the Commonwealth Games.[163]

273 In the end, as we see it, the report, so far as it disclosed a possible reason for the Minister's decision to exempt the amendment from the notification process, identified a single circumstance - the circumstance correctly identified by the learned trial judge.

274 Having first attempted to give the impression that the 'redevelopment package' had as its focus the restoration of the MCG Hotel in order that it would 'become a shrine to the birth of Australian Rules Football',[164] the press release said this:

Ms Delahunty said she had approved a site specific planning scheme amendment to permit the $86 million package of construction projects involving the Hilton on the Park Hotel and surrounding historic buildings, also owned by Hilton owners Thakral Holdings Limited.

The hotel refurbishment will be completed in time for the Melbourne 2006 Commonwealth Games and will provide much-needed tourist accommodation right on the edge of Melbourne's sporting precinct.

The package includes the restoration of the MCG Hotel and construction of a 15-storey apartment and retail building behind it; the refurbishment of the Hilton on the Park Hotel to preserve its five-star status; and the restoration of historic Mosspennoch House in Clarendon St as part of a 12 apartment complex.

Ms Delahunty said she had approved Amendment C101 to the Melbourne Planning Scheme to permit the development and had used her ministerial power of intervention to exempt the amendment from the requirement under the Planning and Environment Act to give public notice of the decision.

'This decision is in line with the Ministerial Powers of Intervention in Planning and Heritage Matters Practice Note. I am satisfied that the proposed development and the amendment raise a major issue of genuine state significance and public interest, and that it will have significant effects beyond the immediate locality,' she said.

'Approval of this amendment means that work can start early next year, ensuring that this project will be finished in time for the 2006 Games.'

275 So far as the press release could be considered to reveal the reasons for the exemption decision, it appears to us that the last sentence of the passage cited was most pertinent. Its reference to completion of the project suggested that much more than completion of internal refurbishment of the Hilton Hotel would occur by the time of the Commonwealth Games. We should add that the assertion that the amendment would allow 'a package of construction projects involving the Hilton on the Park Hotel and surrounding historic buildings' may have conveyed the false impression that refurbishment of the Hilton hotel was legally impossible unless the amendment was adopted and approved.

276 Whilst, in our opinion, the press release gave support for the appellant's contention that the trial judge correctly identified the Minister's publicly declared reason for exercising her discretion to exempt the amendment from the notification provisions, we think that it was correct for appellant's counsel to eschew reliance upon the document. The other public documents had a degree of formality - because their genesis lay either in statute or in the practice note. But no such formality attended the press release, which was a truly political document.

277 In our opinion, examination of the public documents - most importantly what we have called the public reasons, but also the incorporated document and the explanatory report - shows that a single reason was advanced for the exemption decision: that urgent action was required so that refurbished and additional visitor accommodation could be provided in time for the Commonwealth Games. Fairly read, the Minister did not propose by any of those documents that the reason for her exemption decision was simply to enable completion of internal refurbishment of the Hilton Hotel by that time.

278 In concluding that there was but a single expressed reason for the exemption decision, we have put to one side, for reasons already explained, matters which the Minister called in aid to justify her adoption and approval of the amendment. We have identified those matters in our analysis of the documents, and we need not repeat them. By not referring to such matters in his analysis of the public documents, the trial judge implicitly, and in our opinion correctly, recognised the distinction between matters bearing upon the exercise of the exemption discretion and matters bearing upon adoption and approval of the amendment.

279 In the event, we are respectfully unable to agree with so much of the analysis of the learned Chief Justice[165] as concludes that the two 'true' reasons for the exemption decision identified by the trial judge are discernible - though with different emphasis by contrast with the departmental documents - in the public documents. The most that can be said, in our opinion, is that refurbishment of the Hilton Hotel in time for the Commonwealth Games was one element of the reason, pertaining to accommodation, which founded the exemption decision.

280 To complete this part of our reasons, seven matters must be mentioned.

281 First, counsel for both respondents stated, in answer to questions asked by the Court, that they challenged a conclusion that the trial judge made a finding as to the reason publicly stated by the Minister for her exercise of the exemption discretion. But the challenge, as we noted earlier, was faint. It was submitted that the judge had only stated an 'impression' - as if that meant, contrary to any sensible reading, that he had not really arrived at a conclusion. In truth, the respondents' position recognised an inevitable conclusion: that the trial judge held that the public reasons and other public documents showed that the reason given by the Minister for exercising the exemption discretion was that thereby additional accommodation could be secured in time for the Commonwealth Games.

282 Second, it does not matter how the Minister came to arrive at the reason which she publicly advanced for exercising her power to exempt. What matters is that it was the[166] operative reason for her action. Her reason may have been simple mistake. It may have been the careless work of those who created the documents. It is not necessary to impute bad faith on the part of the Minister.

283 Third, there is no warrant for reasoning that, because the reason was wholly implausible, it could not have been the reason for the exercise of discretion settled upon by the Minister. Had there been some fleeting reference to that reason in the public reasons, or in some other public document, it might have been said that it was just a mistake, mere looseness of language; and that it could not have been the reason, or an operative reason, for her exercise of discretion. But here the particular reason was a constant theme in the public reasons and in the other public documents.

284 Fourth, we think that it would be wrong to ascribe to a Minister of the Crown a motivation of 'political spin' in order to justify a conclusion that the reason for the exercise of a significant ministerial discretion action was other than the reason publicly and repeatedly expressed by the Minister in formal documents. We cannot agree with the observation of the learned trial judge that -

... one cannot rule out the possibility that the public documents explaining the Minister's decision were intended to put a gloss or 'spin' on the real basis for the decision, possibly to avoid or minimise public criticism.[167]

285 Fifth, we think that in circumstances where a reason for action was publicly, plainly and repeatedly stated, it must be at least be difficult to impugn that reason in favour of a reason or reasons not appearing in the public domain. This is not a case, as we have already said, of the reason for a decision not being stated.

286 Sixth, if we were wrong in concluding that the Minister gave only one reason for the exemption decision in the public documents, we would not in any event agree that those documents disclosed the possible explanation, which the trial judge said he could not exclude, for the 'main purpose' which he identified of the exercise of the discretion.

287 Seventh, (this was not a matter advanced for the appellant) had it been the case that a public reason advanced for the exercise of discretion had been the urgency of ensuring the completion only of the internal refurbishment of the Hilton Hotel in time for the Commonwealth Games, resort to departmental documents - the course taken by the trial judge, and the course advocated by counsel for the Minister and PCH - would show the flimsiness of such a justification. The undertaking given by PCH in that connection was hedged about with a series of qualifications. They began with the need for a decision by the company's board, continued with the need for quick action by the responsible authority whenever required, and in any event never rose above 'best endeavours'. On the other hand, there was force to the submission for PCH that it was a matter for the Minister whether the qualified undertakings sufficed.

The reason(s) for the exercise of the s20(4) discretion. Was it permissible to consider the departmental documents?

288 Counsel for the appellant submitted that the Minister had assumed the obligation of giving public reasons for the exercise of the exemption discretion; and had provided such reasons. They should be viewed no differently to reasons required by statute. They were unambiguous. It was impermissible to seek to controvert them by resort to departmental documents. It was not a factor against that contention that the departmental documents were in existence before the time when the exemption discretion was exercised and the public reasons provided. Further, there was no basis for concluding, even if the Minister had seen the documents, that her decision implied that something said in one or more of them had been operative in her exercise of the discretion to exempt.

289 Counsel for the Minister submitted that the application before the trial judge had been correctly treated as being an application for judicial review made on a number of grounds, including 'extreme (Wednesbury) unreasonableness, irrelevant considerations, failure to accord procedural fairness, improper delegation of the preparation of the amendment, breach of duty, and failure to give statutory notice.'[168] The primary basis of challenge had been that the factual basis for the Minister's decision had been wrong, because the expanded accommodation allowed for by the amendment could not have been provided by the time of the Commonwealth Games. It was submitted that in a case in which one ground of challenge was Wednesbury unreasonableness, it had been proper for the trial judge to look beyond the Minister's publicly stated reasons. Those reasons were just part of the material which a Court could examine in a proceeding for review. English authorities suggesting the contrary were distinguishable.

290 Counsel for the Minister also submitted - as did counsel for PCH - that the appellant was seeking to run a different case on appeal then that which was run at trial; and that it should not be permitted to do so. There, the appellant had put into evidence, and relied upon, departmental documents. Its counsel had not submitted that the judge should disregard those documents in determining whether there was any plausible justification for the Minister's decision to intervene. Its counsel, indeed, had stated that it was his client's case that the Minister was aware of a letter from PCH to the Department dated 14 December 2004.

291 It is first necessary to understand what is encompassed by the term 'the Departmental documents'. We have already noted the content which the learned trial judge gave to it. We do not wholly agree.

292 There were many communications between PCH, its planning advisers and the Department in the period between mid October and mid December, 2004, particularly from about mid November. The decision which is attacked, however, is the Minister's decision to exempt the amendment from the notification requirements. So far as any documents received or generated by the department were not brought - directly or indirectly - to the Minister's attention, they could not have influenced the decision which she reached.

293 There is no doubt that the Minister saw a briefing note prepared by the Departmental officer, Mr Phillips, dated 14 December 2004. She signed it so as to record that she had done so.

294 Next, PCH wrote a letter to the Department, dated 10 December 2004. It was conceded at trial by counsel for the appellant that it was either attached to the briefing note or otherwise brought to the Minister's attention before she made the impugned decision.

295 Also attached to the briefing note was an 'explanation of the Minister's reasons for intervention'. That was the document to which we have referred at [236] and following. So it became a public document.

296 The first two documents to which we have referred should be characterised as department documents - which is to say that each document was before the Minister, not that it necessarily discloses her reason(s) for the impugned decision.

297 The briefing note also referred to 'the Minister for State and Regional Development in a letter dated [ blank] December 2004' having written to the Minister requesting her to exercise her powers under s 20(4) of the Act. We have referred to the letter earlier. In fact it was dated 14 December 2004. There is nothing to suggest that it was seen by the Minister. It should not be characterised as a departmental document. But had it been so characterised, we think it would not have assisted the respondents' cause.

298 We go back in time. The initial approach by PCH seeking ministerial intervention was by letter dated 13 October 2004, addressed to the Minister. There is nothing to indicate that she ever saw it. Mr Phillips, who swore two affidavits in the Minister's defence to the appellant's claim, did not so depose. Counsel for the appellant did not concede at trial that the Minister had seen the letter. Neither, absent it being established that the Minister saw the first briefing note, is there any evidence that she was 'made aware of' the letter's content. We would not infer that she did see it, or that she was made aware of its content. An 'office received' stamp provides a weak basis for drawing such an inference. In the result, it should not be characterised as a departmental document as we have defined that expression.

299 We turn to another document. A Ministerial drafting note was prepared by a Departmental officer, and was authorised by Mr Phillips on 26 November 2004. It dealt with a proposed amendment to the Melbourne Planning Scheme which would have imposed mandatory height controls over development in the area affected by the presently relevant amendment. The note asked the Minister to agree that the department should write to the Chief Executive Officer of the City of Melbourne indicating, in substance, its disagreement with the proposed amendment. In the body of the document, some reference was made to PCH having recently written to the Minister expressing its concern with the planning process of refurbishing and redeveloping the sites encompassed by the presently pertinent amendment; and setting out some of the planning history with respect to the sites.

300 Mr Phillips deposed that 'the briefing note was returned unsigned by the Minister.' He was not cross-examined. His credit was not in issue. But what he there deposed cannot be elevated to establish that the Minister - so far as it could be relevant - ever saw the document. We would not infer, we add, that she did see it. The fact that the note was not signed by the Minister, when provision was made for her to sign it, can be contrasted with her signing the briefing note dated 14 December.'

301 The judge below identified the PCH letters of 13 October and 10 December 2004 and the Ministerial briefing note signed by the Minister on 14 December 2004 as the relevant departmental documents. It follows from what we have said above that we agree with his Honour about the status of the latter two documents, but respectfully disagree with his conclusion about the first of them. Further, we have identified no other document falling within the description.

302 We disagree with the respondents' submission that the appellant relevantly advanced a different case on appeal than it had conducted at trial.

303 Counsel for PCH submitted that the appellant, through the affidavit of Margaret Wood sworn 26 April 2005 'put the departmental documents into evidence' - these being identified as the PCH letter of 13 October 2004 and the Ministerial briefing note of 14 December 2004. That is strictly not so, and is in any event misleading. Each of those documents had already been exhibited to Mr Phillips' affidavit sworn 18 April 2005. Moreover, Ms Wood referred to the letter of 13 October to demonstrate, as she alleged, that its content was in part untrue; whilst the briefing note was simply exhibited as a document discovered by the Minister.

304 Counsel for PCH further submitted that the appellant's counsel at trial had referred in opening at trial to the letters of 13 October and 10 December. Indeed he did. He referred to the letter of 13 October in setting out the chronology of the matter. He agreed with the judge that it was because this letter was the first approach that he wanted to take his Honour to it. The reference had nothing to do with what the appellant alleged was the reason for the Minister's exercise of discretion.

305 Next, appellant's counsel at trial referred to the letter of 10 December when describing the content of the briefing note. It was evidently his thesis, consistent with aspects of the appellant's claim which were not pursued on the appeal, that the briefing note contained a number of defects. In any event, passing reference was made to the letter of 10 December - which counsel conceded must have been attached to the briefing note, or in any event have been seen by the Minister. This had nothing to do with the Minister's reason(s) for exempting the amendment from the notification provisions.

306 Turning from the specific to the general, we do not agree with the large submission made for the second respondent that, in effect, counsel for the appellant conducted the case at trial on the basis that 'the departmental documents' - whatever that might encompass - were before the Minister at the relevant time. There is no warrant for so concluding.

307 Beyond what we have said, it is instructive to consider the further amended statement of claim. The reason there relied upon by the appellant to found the case based upon improper purpose, a factually incorrect basis for decision, and unreasonableness, is alleged to be found in what we have called the public reasons. Against that background, the submission for the respondents that,[169] 'at no stage at trial did the appellant argue that regard should not be had to the departmental documents' lacks force.

The Minister should ordinarily be bound by reasons given

308 A decision-maker should ordinarily be treated as bound by - and confined to - the reasons which the decision-maker gives for the decision in question. That is partly so because, as we have discussed, reasons have a particular importance and purpose. The right of persons affected to seek judicial review of a decision would be severely diminished if, a stated reason being indefensible, the decision-maker or those who seek to uphold the decision were then permitted to defend the decision on the basis of matters which were not mentioned in the statement of reasons but which were claimed to be in fact part of the reasons; or in reliance upon other matters which, although not adverted to, were capable of justifying the decision, such that it could not be said to be 'devoid of any plausible justification'.

309 Authorities show that there is a considerable inhibition upon recourse to what may be called 'other material' where challenge is made to an administrative law decision in which the decision-maker has stated reasons for decision. The general principle is that a court, when considering the lawfulness of a decision, may admit evidence in quite limited circumstances so as to elucidate, but not fundamentally collide with, the reasons stated by the decision-maker. Hutchinson LJ stated the principle, and its rationale, very clearly in R v Westminster City Council, ex parte Ermakov[170] when he said -

(2) The court can and, in appropriate cases, should admit evidence to elucidate or, exceptionally, correct or add to the reasons; but should, consistently with Steyn LJ's observations in Ex p Graham, be very cautious about doing so. I have in mind cases where, for example, an error has been made in transcription or expression, or a word or words inadvertently omitted, or where the language used may be in some way lacking in clarity. These examples are not intended to be exhaustive, but rather to reflect my view that the function of such evidence should generally be elucidation not fundamental alteration, confirmation not contradiction. Certainly there seems to me to be no warrant for receiving and relying on as validating the decision evidence - as in this case - which indicates that the real reasons were wholly different from the stated reasons. It is not in my view permissible to say, merely because the applicant does not feel able to challenge the bona fides of the decision-maker's explanation as to the real reasons, that the applicant is therefore not prejudiced and the evidence as to the real reasons can be relied upon. This is because, first, I do not accept that it is necessarily the case that in that situation he is not prejudiced; and, secondly, because, in this class of case, I do not consider that it is necessary for the applicant to show prejudice before he can obtain relief. Section 64 requires a decision and at the same time reasons; and if no reasons (which is the reality of a case such as the present) or wholly deficient reasons are given, he is prima facie entitled to have the decision quashed as unlawful.

(3) There are, I consider, good policy reasons why this should be so. The cases emphasise that the purpose of reasons is to inform the parties why they have won or lost and enable them to assess whether they have any ground for challenging an adverse decision. To permit wholesale amendment or reversal of the stated reasons in inimical to this purpose. Moreover, not only does it encourage a sloppy approach by the decision-maker, but it gives rise to potential practical difficulties. In the present case it was not, but in many cases it might be, suggested that the alleged true reasons were in fact second thoughts designed to remedy an otherwise fatal error exposed by the judicial review proceedings. That would lead to applications to cross-examine and possibly for further discovery, both of which are, while permissible in judicial review proceedings, generally regarded as inappropriate. Hearings would be made longer and more expensive.

(4) While it is true, as Schiemann J recognised in Ex p Shield, that judicial review is a discretionary remedy and that relief may be refused in cases where, even though the ground of challenge is made good, it is clear that on reconsideration the decision would be the same, I agree with Rose J's comments in Ex p Carpenter that, in cases where the reasons stated in the decision letter have been shown to be manifestly flawed, it should only be in very exceptional cases that relief should be refused on the strength of reasons adduced in evidence after the commencement of proceedings. Accordingly, efforts to secure a discretionary refusal or relief by introducing evidence of true reasons significantly different from the stated reasons are unlikely to succeed.

1. Nothing I have said is intended to call in question the propriety of the kind of exchanges, sometimes leading to further exposition of the authority's reasons or even to an agreement on their part to reconsider the application, which frequently follow the initial notification of rejection. These are in no way to be discouraged, occurring, as they do, before, not after, the commencement of proceedings. They will often make proceedings unnecessary. They are in my judgment very different from what happened in this case.

310 The principle has often been applied in cases in which there was a statutory duty to give reasons. But the existence of a statutory obligation is not the sine qua non of the application of the principle.[171] There is sound reason why it should equally apply to a case such as the present, in which the public reasons, founded on the obligation set out in the practice note, had a degree of formality. For, as has often been emphasised, one purpose of reasons is to enable the parties - or, in a situation such as this, a group of persons intimately affected by the Minister's decision - to understand the basis of the decision, and thus to permit persons adversely affected to assess whether they have any ground for challenging the decision; likewise to permit the Court to undertake its function. As Hutchinson LJ observed in Ermakov, it would be inimical to that purpose if the stated reasons were able to be replaced by different reasons.

311 Sometimes the variant reasons have been the late-made correction of the decision-maker.[172] Speaking generally, there is particular reason to reject an attempt to re-write history.[173] Beyond that, it has understandably been said that use of a late-made document to remedy a manifest flaw in stated reasons will only be permitted in very exceptional cases. These are just examples of the principle in action.

312 We put to one side a body of law which addresses the situation where a decision is unsupported by any reasons. It is permissible in such a case to look behind the decision to the material before the decision-maker, in an attempt to discern the reasons for the decision. Documents placed before the decision-maker may be considered. The court may be able to say that the decision could be explained by such material.[174] The inference may then be available that the information contained in the documents was taken into account and provided the reason for the decision.[175] But when a statement of reasons has been provided, a failure to refer to particular matters or give other reasons will justify the inference that such other matters or reasons were not relied upon.[176]

313 Here, that body of law could have no application. The trial judge concluded that the 'overall impression' intended to be created, and in fact created, by the documents was that exempting the amendment from the notification requirements was necessary for the purposes of providing additional accommodation. He was plainly concluding that the identified circumstance was the publicly stated reason for the decision. But he then went to the departmental documents, and used them to discern quite different reasons for the Minister's exemption decision. That was, with respect, an impermissible exercise in the circumstances of the present case because it failed to assign to the Minister's stated reason the pre-eminence which it required. The decision-maker having identified the reason for the decision, a review as to whether the decision was reasonable by reference to all the material before the decision-maker constituted an irrelevant merits inquiry.

314 The first respondent's invitation to this Court to put to one side or ignore inconvenient passages in the stated reasons and other material in the public documents, on the basis of 'looseness' of language, should be rejected. Having regard to the fact that the public reasons and the other public documents were carefully prepared, that the impugned passages had such a place of prominence in the public reasons and those other public documents, and that the critical statement was repeated a number of times, we do not consider it permissible to disregard the error so fundamental to the Minister's opinion, which rendered the Minister's decision implausible and perverse.[177]

315 With the qualification that refurbishment of the Hilton Hotel was expressed as one element of the accommodation reason which drove the exemption decision, we do not accept the argument that either of the 'true' reasons for the Minister's exercise of the exemption discretion which the trial judge identified can be found in the public reasons or other public documents. Neither can we accept the proposition that the public reasons or the other public documents, when sensibly read, left the Minister's reason for exercising the s 20(4) discretion ambiguous, such that it might stand in need of elucidation.

The departmental documents do not permit an inference that the Minister's decision was based upon a particular reason or reasons

316 It follows from what we have said that recourse to the departmental documents was impermissible. But what if our conclusion was wrong?

317 His Honour took the following approach to the Minister's published reason:

During the course of argument I asked counsel for the plaintiff to consider what would be the legal consequences of a Minister making a decision, for a proper purpose and having regard to relevant considerations, and then, for political reasons, explaining the decision to the public by reference to a different purpose. [Counsel] responded by submitting that such a decision would be invalid. I cannot agree. It is the actual purpose of the decision that is relevant to an attack on the legality of a decision by reference to an improper purpose. And a decision is not based upon irrelevant considerations merely because it has been explained in terms which are politically convenient; it is necessary to show that, in the making of the decision, the Minister has taken irrelevant considerations into account.

318 The fact that it was established to the trial judge's satisfaction that material containing proposals by PCH was put before the Minister says nothing as to whether the Minister took that information into account or considered it of such importance as to treat it as a reason to exempt the amendment.[178]

319 The trial judge found that the Minister did not state her true reason but proffered for publication something which she regarded as politically more palatable. This approach to consideration of the publicly stated reason for the exemption decision was, in our opinion, flawed in a number of respects.

320 First, no party suggested, either at trial or on appeal, that the Minister's articulated reason could be explained as 'political spin' as the trial judge described it. No claim of any extraneous improper purpose or of bad faith was made by any party at trial or on appeal. No party raised the hypothesis that the published reason was an attempt to give political respectability to underlying 'true' reasons.

321 Second, there is an important distinction between the reason for the critical decision and the Minister's purpose in approving the amendment to the scheme and its exemption from the notification process.

322 Third, we can discern no evidentiary basis for the conclusion that the Minister made her decision for a reason other than that stated in the public reasons and the other public documents. Whether an intended deception or a bona fide mistake be the explanation for the reason publicly expressed, the decision could not be validated by solecisms about 'having regard to all the material' before the Minister unless, within that material, there existed a compelling basis to infer that the Minister considered some other reason sufficient to warrant the use of the power to exempt.

323 The fact that the departmental documents were placed before the Minister does not advance the question whether the Minister relied upon anything contained within them as providing a reason to exercise the power. Nothing appears from the material to support the contention now advanced that the Minister considered either of the two matters identified by the trial judge as sufficient to warrant exercising the discretion to exempt. Nor is that surprising. The difficulty in drawing an inference, when a reason for a decision has been given, that other, quite different, unexpressed reasons were operative, is obvious enough.

324 Unusual though it might be for her to have done so, we think that the Minister was entitled to tender further evidence if she wished, and to depose that either or both of reasons identified by the trial judge as the true reasons were in fact reasons for her decision to exempt.[179] No inference can be drawn from the absence of such additional evidence. But there was no evidence before the trial judge which permitted either his conclusion that the published reason was disingenuous or that particular information contained in the departmental documents was considered by the Minister to provide a justification to exempt the amendment. Both conclusions were, with respect, entirely speculative. And as to the first of these conclusions, ordinarily, where the explanation proffered for an act proves to be premised on a false foundation, one would not conclude, in the absence of a sound basis for doing so, that it was a deliberately false rather than a mistaken explanation

325 Even if the possible thought processes of the Minister had been sufficiently disclosed by some material, what was in her mind when considering whether to exercise the discretion to exempt did not constitute the decision;[180] nor was it part of the reasons for the decision to exercise the discretion. Proof that material was placed before the Minister prior to her making her decision establishes only that she was in receipt of information. It does not establish that the Minister took such information into account or, more importantly, relied upon it as a reason for making her decision.[181]

326 We have expressed the opinion a number of times that the departmental documents (if it had been permissible to look at them) did not enable an inference to be drawn that the Minister adopted any reason for her exemption decision. We should say why that is so.

327 First, it is only possible to say that the Minister should be assumed to have read the briefing note, that she may have read the attached PCH letter dated 10 December 2004, that she approved the two recommendations made by the briefing note, that she signed relevant documents, and that she authorised, at least implicitly, release of the amendment, the public reasons and the other public documents into the public domain. Even if there could be found, in one or both departmental documents, material upon which the Minister might have relied to found a particular reason for exercising the exemption discretion, if this Court decided that the possible reason was the actual reason for the exercise of discretion, it would really be putting itself in the position of the Minister, with the benefit of hindsight and the elaborate submissions of counsel, and deciding what reason it would or might have given for the exercise of the exemption discretion.

328 Second, in our opinion the briefing note did not in any event disclose a reason for the exercise of the discretion. It (1) recited the background to the matter; (2) described the 'issues' - which consisted of the misleading reference to the letter from the Minister for State and Regional Development to which we have already referred, an account of what the amendment would do, the circumstance that the proposed development was, as it was claimed, consistent with and would achieve planning policies and objectives, and a statement that Heritage Victoria had conditionally expressed its approval about the proposed redevelopment of Mosspennoch; (3) described consultation with 'key stakeholders'; and (4) made the recommendations which the Minister approved.

329 It was conceded for the first respondent, in our opinion correctly, that the document itself did not directly advance a reason why the Minister should exercise her discretion to exempt the amendment from the notification process. As in the case of the explanatory report, and to some extent the public reasons, it did state reasons why the development which the amendment would permit accorded with various planning aims and objectives. That provided a reason for adopting and approving the amendment. Other than that, the document referred, under the heading 'consultation' to the PCH letter of 10 December. In doing so, it did no more than summarise a number of aspects of the undertakings which had been given - amongst which were (as described) undertakings 'to refurbish and restore the existing hotels and Mosspennoch House using its best endeavours to ensure the refurbishment is completed before the 2006 Commonwealth Games'. Even if that description of the undertakings was accurate, it was not highlighted so as to convey a need for urgent action which might justify exercise of the s 20(4) discretion.

330 Third, it follows that the PCH letter of 10 December was the only departmental document which, as a matter of theory, might have provided a reason or reasons for the Minister's exercise of discretion other than the reason which she advanced publicly. On analysis, however, the letter sent an ambiguous message. On the one hand, it said that -

[PCH] wishes to support the 2006 Commonwealth Games by refurbishing the 5 star Hilton-on-the Park Hotel and increase the capacity with longer stay suites and apartments to be constructed over the Ballroom. The new apartment style facilities will be linked directly into the main hotel at levels 2 and 3. The majority of apartments will be sold subject to management agreements. The proceeds of the sales will be used to fund the refurbishment of the Hilton-on-the Park and the MCG Hotel.

[PCH], subject to the final approval of the Board, is prepared to give the following undertakings to the Government of Victoria. The undertakings are subject to [PCH] being granted all necessary and timely development/construction approvals consistent with Planning Permit Application TP 04/0638 to the Melbourne City Council (in full) prior to 1 January 2005;-

1. To refurbish and maintain operation of the Hilton on the Park, using its best endeavours to complete the refurbishment of the hotel prior to the 2006 Commonwealth Games. The Management Agreement currently in place with Hilton Hotels of Australia Pty Ltd and Hilton International is valid up to 1 April 2034, subject to usual commercial conditions. The on-going operation of the Hotel would be subject to maintenance of commercial returns acceptable to [PCH].
2. To refurbish and restore the MCG Hotel in accordance with the aforementioned Planning Permit Application TP 04/0638 and to facilitate the on-going operation of the MCG Hotel subject to maintenance of commercial returns acceptable to [PCH].
3. To restore Mosspennoch House, in accordance with plans and specifications approved by Heritage Victoria by way of permit, for conversion to 6 residential apartments which would be offered for sale to the public.

331 In our opinion, even if it could be inferred that the Minister decided to exercise her exemption discretion on the basis of things said in the letter, it is by no means clear that urgency dictated by the prospect simply of achieving refurbishment of the existing Hilton Hotel by the time of the Commonwealth Games would have been one of them. The two passages which we have cited from the letter show why that is so. Further, the 'main purpose' for which the Minister exercised her powers, as identified by the learned trial judge, and the explanation for such exercise which his Honour held could not be excluded, appear to us to be really his Honour's opinion, on a retrospective consideration of the documents, about what was capable of having constituted a reason for the exercise of the discretion (and then for the adoption and approval of the amendment).

Summary. The reason for the exercise of the exemption discretion.

332 In our opinion, there was a single publicly stated reason for the Minister's decision to exempt the amendment from the notification process. It was that urgent action was required so that refurbished and expanded visitor accommodation could be provided in time for the Commonwealth Games. Even if it was permissible to consider the departmental documents in a search for the Minister's reason(s), consideration of those documents would yield no different result. Further, as was not in contest, the reason was wholly implausible insofar as it related to expanded visitor accommodation - which on the face of the public reasons and other public documents could not have been other than material to the decision made.[182] In accordance with principles earlier discussed, it was incapable of founding a valid exercise of the exemption discretion.[183]

333 The conclusion which we have just expressed is enough to dispose of the appeal. But for sake of completeness we should address a discrete argument raised by the appellant, grounded in assertions, shortly put, of improper purpose and irrelevant consideration.

334 Upon the appellant's argument, the Minister's reason for exercising the exemption discretion, consistently with our conclusion, was the assumed benefit of having refurbished and expanded accommodation available for Commonwealth Games visitors. Reliance upon the former was use of the power for an improper purpose; and it was an irrelevant consideration. The latter was unarguably unachievable, and so the decision was vitiated on Wednesbury principles. But even if it had been achievable, the appellant argued that the decision must have fallen because there had been, put shortly if not quite accurately, multiple operative purposes for the decision to exempt, which included the improper purpose or irrelevant consideration of refurbishment of the Hilton hotel.

335 In Arthur Yates & Co Pty Ltd v The Vegetable Seeds Committee and ors[184] Dixon J said that -

it must at least be necessary to show that the improper motive was the sole or dominant one, and that but for it a majority would have voted against adopting the by law.[185]

336 Likewise, it was stated in Samrein Pty Ltd v Metropolitan Water Sewerage and Drainage Board[186] that, in the circumstances of that case -

. . . it will be an abuse . . . of power if the ulterior purpose is a substantial purpose in that no attempt would have been made to acquire the land if it had not been desired to achieve the unauthorised purpose.

337 Where multiple purposes for an impugned decision can be discerned, some of them sound and one or more of them illegitimate, the authors of Judicial Review of Administrative Action suggest that the test whether an improper purpose will vitiate a decision is whether the decision-maker was 'materially influenced' thereby - in which case it can be said that it was a substantial purpose for the decision made.[187] They argue that such a test accords with established Australian doctrine regarding the 'considerations ground' of review. There, the courts refuse to strike down a decision for having taken an impermissible factor into account or for having omitted to take account of a factor which the decision-maker was bound to consider, if the factor was so insignificant that the decision would obviously have been no different in the absence of the error.[188] This approach appears to accord with English authority which suggests a 'substantial influence' test - requiring that the purpose be material but not necessarily a relatively major reason for the impugned decision.[189]

338 The appellant did not seek to rely upon improper purpose in the way in which the concept usually has application.[190] As we have already noted, it did not seek to rely upon extraneous material to establish that the Minister was actuated by such a purpose. The main thrust of its attack, both with respect to improper purpose and its claim that the Minister took account of an irrelevant consideration, was that the Minister had impermissibly taken into account a particular prospective benefit of the proposed amendment - refurbishment of the Hilton Hotel.[191] It was not in doubt, the appellant contended, that the Minister had taken the matter into account.

339 We pause for a moment to make two points. First, the conclusion which we have reached as to the reason for the Minister's exercise of discretion means that the last-noted submission must be accepted. Second, the appellant also contended that the wholly implausible reason for the exemption decision advanced by the Minister - that exemption would facilitate the expansion of accommodation in time for the Commonwealth Games - could be viewed, being devoid of any factual foundation, as the taking into account of an irrelevant consideration.

340 There is no need, as we see it, to further address the second of these matters. It was simply a re-characterisation of the principal argument, which was based upon 'Wednesbury' unreasonableness, and which focused upon a circumstance that materially influenced and was a dominant and substantial reason for the exemption.

341 Judicial review may be sought on the ground that the decision-maker was motivated by an improper purpose or on the ground that the decision-maker took into account an irrelevant consideration. Where the Court is concerned with a statute which has conferred - as in this case - an apparently unconfined discretion upon the decision-maker, the factors which that person may take into account will be unconfined save to the extent that there may be implied from the subject matter, scope and purpose of the statute, some limitation on the factors to which regard may legitimately be had.[192] It is equally well established that an administrative act will be invalidated where its 'initiating and abiding purpose' is a foreign or ulterior one.[193]

342 Here, the question, as to both improper purpose and irrelevant consideration, is whether the assumed benefit of refurbishment of the Hilton Hotel in time for the Commonwealth Games was outside any limits implied by the subject-matter, scope and purpose of the Act.

Would the decision be vitiated if refurbishment of the Hilton Hotel was a purpose of the Minister's decision?

343 The Minister relied upon the assumed benefit of refurbishment of the Hilton Hotel in time for the Commonwealth Games as part of her reason for the exemption decision. In our opinion, if that was an improper purpose, or if it was a circumstance irrelevant to the exercise of the discretion, the decision would be vitiated. It would make no difference whether, in Australia, the tests for determining the impact of improper purpose and irrelevant consideration to some extent diverge. In light of the Minister's repeated reference to refurbishment of the Hilton Hotel as part of the reason for her exemption decision, it would not be sensible to say that it had not played a large operative role in her decision. That would be so regardless whether the Minister also brought to bear other and relevant considerations. On the Minister's account, refurbishment of the Hilton and the expansion of accommodation, each in time for the Commonwealth Games, drove her decision. A fortiori, it could not be said that it was so insignificant a consideration as not to have materially affected the decision.

Was the exemption decision made for an improper purpose or having regard to an irrelevant consideration?

344 The precise way in which the appellant developed the argument now under consideration was as follows:

It is submitted that under section 20(4) of the Act there must be a direct nexus between the planning scheme amendment which is exempted from the requirements of the Act inviting public involvement, and the matter which is of State or regional significance, which is identified as the relevant test for granting exemption in the Ministerial Practice Note.

In short, the planning scheme amendment which is the subject of exemption must be the mechanism which approves the project which is of State or regional significance.

If the matter of State or regional significance was the entirety of the development authorised by the Amendment (as stated in the official reasons), the necessary nexus did exist because that development required planning approval and was in fact approved by the Amendment.

However, if it is permissible to look beyond the official reasons and identify a real reason for the matter being of State or regional significance as being the refurbishment of the Hilton Hotel in time for the Commonwealth Games, the required nexus did not exist. This is because planning approval was not required for the refurbishment of the hotel. The Amendment did not approve, expedite or otherwise facilitate the refurbishment of the hotel. The direct relationship between the Amendment and the project which is required before an exemption under section 20(4) of the Act can be granted did not exist.

345 The trial judge rejected the appellant's contention that, if a reason for the exercise of the Minister's power of exemption was to facilitate the refurbishment of the Hilton Hotel in a timely manner for the Commonwealth Games, the Minister took into account an irrelevant consideration. His Honour rejected a related argument, that the Minister had made the decision to exempt for an improper purpose, by approving development which required planning permission in exchange for an undertaking by PCH to undertake certain works for which no planning permission was required. In so concluding, his Honour recognised that private economic considerations are not relevant in the exercise of discretions pursuant to the Act. He referred to the judgment of Stephen J in Kentucky Fried Chicken Pty Ltd v Gantidis and Anor.[194] In that case, after observing that it was proper planning purpose to take into account an existing communal benefit which might be placed in jeopardy by a proposed development, Stephen J observed that -

It does not cease to be so because the profitability of individual existing businesses are at one and the same time also threatened by the new competition afforded by that new development. However, the mere threat of competition to existing businesses, if not accompanied by a prospect of a resultant overall adverse effect upon the extent and adequacy of facilities available to the local community if the development be proceeded with, will not be a relevant town planning consideration.

The trial judge further observed , and we see no error in this:

Similarly development undertaken by a private company may have an effect on the overall extent and adequacy of facilities available to the community (or have some other public benefit); and this will be a relevant planning consideration, notwithstanding that it will also be of benefit to that private company.[195]

346 But the trial judge then concluded that 'this principle does not cease to apply if the beneficial development is not the development the subject of the approval, provided it is an effect of the approval of the development', citing for that proposition his decision in Australian Conservation Foundation v Latrobe City Council[196] His Honour explained what he there decided as follows:

I held that a panel appointed under the Act to consider an amendment to facilitate the extension of the brown coal fired Hazelwood Power Station must consider submissions about the impact of greenhouse gases. This was so notwithstanding that the amendment only made minor changes to the relevant planning scheme: as an indirect effect of the amendment was to facilitate the continued use of the power station and this would have a consequence on the generation of greenhouse gases.[197]

347 Thus his Honour held in the present case that the fact that the Minister took into account the circumstance that the refurbishment of the Hilton Hotel was made an effect of the approval of the development, by the undertaking given by PCH and by condition 30 of the approval, did not invalidate the decision.

348 The final stages of this process of reasoning are not without their difficulties.

349 First, the refurbishment was not a necessary effect of the approval, for, as we have already observed, PCH did not give an unqualified commitment to undertake the same.

350 Second, the principle that the beneficial development need not be the development the subject of the approval, provided it is an effect of the approval of the development, did not derive any support from either of the cases to which his Honour referred. They were both concerned with the direct and immediate consequences to the public benefit of the development in dispute. Any private benefit was incidental to the development under consideration.

351 In the event, in our opinion, the principle formulated by the trial judge depends for its acceptance upon a determination of the nature, scope and purpose of the relevant legislation from which the Minister's power emanated.

352 Where a statute requires the 'public interest' to be taken into account, a discretionary value judgment made by a reference to undefined factual matters is normally involved.[198] In O'Sullivan v Farrer and anor[199] Mason CJ, Brennan, Dawson and Gaudron JJ observed that the expression 'in the public interest', when used in a statute, classically imported a discretionary value judgment to be made by reference to undefined factual matters which were

confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects that the legislation could have had in view.

That was in accordance with the view expressed by their Honours that where a power to decide is conferred by statute, a general discretion, confined only by the scope and purpose of the legislation, will ordinarily be implied where the context provides no positive indication of the considerations by reference to which the decision is to be made.

353 Questions about 'the public interest' will therefore rarely have only one dimension.[200] Whether a particular course will be 'in the public interest' will often involve judgement about which reasonable minds may well differ.

354 In Re Minister for Resources; Ex parte Cazaly Iron Pty Ltd[201] the Minister terminated an application for an exploration licence under s 111A(1) of the Mining Act 1978 (WA), which empowered the Minister to do so if satisfied 'on reasonable grounds in the public interest' that the application should not be granted. The appellant contended that the Minister was not permitted to have regard to matters extraneous to the application for an exploration licence and could not have regard to the private interests of third parties. Buss JA, with whom Pullin and Wheeler JJA agreed, held that the term 'public interest' was inconsistent with an intention by Parliament to confine the matters which the Minister was entitled to take into account to the land to which the application related.

355 In Re Minister for Mines; Ex parte Haoma North West No Liability[202] the Full Court of the Supreme Court of Western Australia had earlier reached a similar view - that a requirement that the Minister be satisfied in the public interest before exercising a discretion did not limit the basis upon which the Minister could exercise that discretion to considerations arising solely in relation to the land the subject of the application in question.

356 Later in these reasons we advert to the importance which the Act attaches to the notification process. In our opinion, fairly read, the Act does not now relegate such importance to a position of lesser significance by contrast with the desirability of development. We do not see the answer to the present question in a proposition to the contrary.

357 On the other hand, considering the language of s 20(4), and allowing for the importance of all the specified objectives of planning in Victoria, and of the planning framework established by the Act, we do not think it can be said that a reason for exemption must necessarily be confined to the interests of Victoria in the land the subject of the proposed amendment. We think that a benefit accruing in the interests of Victoria - not being a benefit which will accrue from the subject land itself - might in some cases legitimately be relied upon by the Minister in making a decision to exempt. Whether reliance will be legitimate in a particular case, in our opinion, will be a matter of fact and degree.[203]

358 Allowing that every provision must be considered in its own context, that conclusion is consistent with the Western Australian authorities to which we have referred.

359 The appellant contended, in substance, that it could never be permissible to found a decision to exempt upon an assumed benefit to Victoria which would not be directly conferred by the amendment - as distinct from a benefit which would be an indirect consequence of the amendment. On its approach, a direct consequence would be a development permitted by the amendment; and an indirect consequence would be the achievement of an (assumed) beneficial redevelopment of land which did not oblige the (or any) planning scheme amendment.

360 Because we consider that the appellant's contention cannot be accepted as an absolute proposition, its attack founded upon improper purpose and irrelevant consideration fails. The appellant's attack was not that recourse to an indirect consequence might in some cases be permissible - though not in this case; but rather that such recourse could never be permissible. No occasion arises, therefore, to consider the merits or otherwise of the Minister's reliance upon what we have called the indirect consequence in making her exemption decision.

361 Absent an exercise of discretion under s 20(4), the notification process, and that which follows it, must precede the adoption and approval of an amendment. The appellant contends that, the decision to exempt being vitiated, the amendment is invalid, and of no lawful effect. It seeks a declaration to that effect.

362 By notice of contention, PCH relied upon s 39(7) of the Act. Counsel submitted that the sub-section (subject to presently irrelevant exceptions) protects an approved amendment from invalidity in the event of non-compliance, inter alia, with Division 1 or 2 of Part 3. Accordingly, if it was the fact that the exercise of the discretion was vitiated, the validity of the amendment remained unaffected. Alternatively, the fact of an exemption wrongly determined should not lead to a declaration of invalidity in the proper exercise of the Court's discretion to refuse such relief.

363 Section 39 is relevantly as follows:

(1) A person who is substantially or materially affected by a failure of the Minister, a planning authority or a panel to comply with Division 1 or 2 or this Division or Part 8 in relation to an amendment which has not been approved may, not later than one month after becoming aware of the failure refer the matter to the Tribunal for its determination.

(4) The Tribunal may determine a matter referred to it under this section and may do any one or more of the following -

(a) make any declaration that it considers appropriate;

(i) the planning authority must not adopt or approve the amendment or a specified part of the amendment; or

(ii) the Minister must not approve the amendment or a specified part of the amendment -

unless the Minister, planning authority or a panel takes action specified by the Tribunal.

(5) In exercising its jurisdiction under this section the Tribunal cannot vary a decision made in relation to a matter referred to it or set aside that decision and make a decision in substitution for the decision so set aside.

(7) An amendment which has been approved is not made invalid by any failure to comply with Division 1 or 2 or this Division or Part 8.

(8) Except for an application under this section, a person cannot bring an action in respect of a failure to comply with Division 1 or 2 or this Division or Part 8 in relation to an amendment which has not been approved.

364 The section, broadly, addresses two situations: the first, where an amendment has not been approved - in which case recourse to the Tribunal is available; the second, where an amendment has been approved. Only sub-s(7) relates to the latter. It addresses the situation where an amendment has been approved despite there having been a failure to comply with any of Division 1 of Part 3 (which relates to the exhibition and notice of a proposed amendment), Division 2 (which relates to public submissions about an amendment and the way in which they are to be dealt with), and Division 3 (which is concerned with the adoption and approval of amendments). It also deals with want of compliance with Part 8 of the Act, which is concerned with the appointment of Panels under the Act and hearings conducted by such Panels.

365 The objectives of the planning framework established by the Act, set out in s 4(2), include:

(h) to establish a clear procedure for amending planning schemes, with appropriate public participation in decision making;

(i) to ensure that those affected by proposals for the use, development or protection of land or changes in planning policy or requirements receive appropriate notice;

(j) to provide an accessible process for just and timely revue of decisions without unnecessary formality;

366 The exercise by the Minister of the power to exempt herself from the notification requirements of the Act had drastic consequences. It meant, because no notification of the proposed amendment had to be given, that no right to make submissions existed, and that the public was denied participation in the process which would lead, in conventional circumstances, to the Minister's approval or refusal to approve the amendment. In short, s 20(4) conferred upon the Minister a discretion to follow a process which departed from a number of the stated objectives of the Act.

367 It is integral to the rule of law that persons affected by administrative decisions should have access to the courts to challenge those decisions. So privative clauses are strictly construed.[204]

368 In our opinion, there is nothing express, or necessarily to be implied, in the legislative instrument which requires s 39(7) to be construed so as to deny a court the capacity to examine, for error of the kinds alleged in this proceeding, a decision to exempt a proposed amendment from the notification requirements of the Act; or to deny a court the power to make orders which strike down the consequences of a fatally flawed exercise of the exemption discretion. Section 39(7) is concerned with a 'failure to comply' with the specified parts of the Act. In our opinion, that strongly supports a conclusion that the subsection addresses, as the heading to the section states, 'defects in procedure'. Further, only where an amendment has not been approved does the section expressly state, by sub-s (8), that a person cannot bring an action in respect of non-compliance with, inter alia, Divisions 1 or 2 of Part 3.[205] Why permit action if it could lead nowhere?

369 In Grollo Australia Pty Ltd v Minister for Planning,[206] Brooking J concluded that, where the Minister had exercised the power of exemption, the subsequent exercise of the power to adopt and approve the scheme was not subject to the principles of natural justice. Although it was not necessary to his Honour's decision, he considered the scope of s 39(2),which was in the same form as the present s 39(7). His Honour regarded the protection conferred by the provision as extending to 'a case of total failure to comply, at all events where that is not a knowing failure'. But it does not appear to have been argued that want of compliance constituted jurisdictional error which vitiated the exercise of the discretion. We do not regard his Honour's observations about the scope of the provision as extending so far.

370 The trial judge rejected the contention of PCH that s 39(7) rendered the validity of the amendment immune from challenge and precluded the granting of the declaratory relief sought. He held that the provision was concerned with procedural non-compliance but did not protect a decision that was based upon 'jurisdictional error or substantive ultra vires'.[207] His Honour explored the predecessors of the provision which, though differently worded, were plainly directed to 'defects in procedure' as the heading to s 39 states. For the reasons which we have stated, and also substantially for the reasons given by his Honour, we agree with him that s 39(7) only addresses non-compliance with procedural requirements; and that it does not apply to decisions which are tainted by jurisdictional error. The provision, when considered within the context of the whole legislative instrument,[208] is not intended to remove the Court's capacity to ensure that administrative powers are exercised according to law.[209] In consequence, the end product of a fatally flawed exercise of the exemption discretion is not protected against relief at the instance of a person with sufficient standing.

371 In our opinion, the appeal should be allowed, the orders below set aside, and declarations made that the amendment, and those parts of the Melbourne Planning Scheme purportedly affected by the amendment, are respectively invalid, void, and of no legal effect.

[1] East Melbourne Group Inc v Minister for Planning [2005] VSC 242; (2005) 12 VR 448 ('Reasons').

[3] PCH Melbourne Pty Ltd v Melbourne City Council [2002] VCAT 301; (2002) 122 LGERA 375. In addition, at around this time, PCH sought the removal of a condition from a permit issued in 1982 with respect to the use of the Hilton Hotel. This matter was decided on the papers at the Tribunal and is the subject of separate legal proceedings: see Reasons, [26].

[5] As required under Planning and Environment Act 1987 (Vic), s 52(1).

[6] Amendment C93 proposed a revision of the existing Design and Development Overlay Schedule 21 ('DDO'). The existing DDO specified a discretionary maximum building height of 24 metres over the frontage along Wellington Parade from Clarendon Street to Hoddle Street. Although they are situated within this area, the Hilton Hotel, Freemasons Hospital and Mercy Hospital sites were not included in the DDO. The revision was to include these sites and impose a mandatory building height of 24 metres.

[8] During this period, on 22 October 2004, the Registration Committee of the Heritage Council heard an application by the East Melbourne Group Inc for the MCG Hotel to be included in the Victorian Heritage Register pursuant to the Heritage Act 1995 (Vic). It is not of direct relevance to this appeal: Reasons [34].

[9] The agreed height strategy, attached to the exhibit, lists information for a number of sites in the following categories (data for the Hilton Hotel and MCG Hotel site are included in brackets): zoning and heritage (Business Zone 1, MCG Building nominated for HV Register, under consideration by Heritage Council); the height of existing buildings (Hilton Hotel --69m, 20 storeys, MCG Hotel - two storeys); the existing height control (Hilton Hotel - no height control, MCG Hotel - 24m); the recommendation for height controls made under the East Melbourne Built Form Review Stage 1 conducted by Melbourne City Council (35m for both sites); proposed mandatory heights under Amendment C93 (24m for both sites); and DSE recommended heights (per the Incorporated Document).

[10] Section 7(5) provides that '[t]he Minister may issue directions or guidelines as to the form and content of any planning scheme or planning schemes.' Section 12(2)(a) provides that '[i]n preparing a planning scheme or amendment, a planning authority must have regard to the Minister's directions.'

[11] This document is more fully described: see below [50].

[12] This document comprises a single paragraph and contains the statement quoted from the fifth associated document: see above [47].

[13] This document comprises five sentences stating that the Minister has prepared Amendment C101 in accordance with s 8 of the Act and having regard to the requirements of s 12(2)(a), (aa), (ab) and (b) of the Act.

[14] This document states that the Minister exempts herself under s 20(4) because she is satisfied that 'compliance with [the notice provisions] is not warranted; the interests of this part of Victoria make such an exemption appropriate.'

[15] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.

[17] Section 39(7) provides that an amendment that has been approved is not made invalid by failure to comply with Division 1 ('Exhibition and Notice of Amendment' provisions), Division 2 (provisions relating to 'Public Submissions about an Amendment'), Division 3 (provisions relating to 'Adoption and Approval of Amendment') or Part 8 (relating to 'Panels' and including 'Hearings').

[18] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.

[19] Bienke v Minister for Primary Industries and Energy (1994) 125 ALR 151, 163; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, [123].

[20] As to the documents considered by his Honour in each category: see above [65].

[21] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 176.

[22] A-G (NT) v Minister for Aboriginal Affairs (1989) 23 FCR 536, 539-40.

[23] Herald & Weekly Times Ltd v Correctional Services Commissioner [2001] VSC 329 ('Herald & Weekly Times'), [33].

[24] [1996] 2 All ER 302.

[25] [2001] EWHC Admin 538, [34].

[26] [2001] EWHC Admin 901, [56].

[27] See Ashworth Mental Hospital [2001] EWHC Admin 901, where, as in Ermakov, reasons were required by statute. Additional reasons going beyond mere elucidation were not accepted. Cf R (on the application of B) v Merton London Borough Council [2003] EWHC (Admin) 1689; [2003] 4 All ER 280, [43] where Burnton J distinguished Ermakov on the basis that reasons were not required by statute, then applied the non-statutory test described, [34(ii)] in Nash to accept the additional evidence as to the 'true reasons' for the decision.

[28] The case was cited on an unrelated point in Griffith University v Tang [2005] HCA 7; (2005) 221 CLR 99.

[29] [2001] VSC 329.

[31] [2001] VSC 354; (2001) 8 VR 618.

[35] [1996] 2 All ER 302, 316.

[37] R v Licensing Authority for Goods Vehicles for Metropolitan Traffic Area; ex parte B E Barrett Ltd [1949] 2 KB 17, 22 ('Barrett').

[38] Ibid; Herald & Weekly Times [2001] VSC 329, [37].

[39] R (on the application of Richards) v Pembrokeshire County Council [2004] EWCA Civ 1000, [63] ('Pembrokeshire').

[41] [2004] EWCA Civ 1000, [61].

[42] (1989) 23 FCR 536, 539-40.

[43] [2005] FCA 1707; (2005) 148 FCR 446, [455].

[44] [2001] FCA 1700; (2001) 114 FCR 574, [37].

[45] [2001] VSC 329, [38].

[46] Affidavit of M A Wood sworn 26 April 2005, Exhibit MAW 8 and MAW 23.

[53] Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1; Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447.

[54] [2003] HCA 48; (2003) 200 ALR 447, [51]; Park v Brothers [2005] HCA 73; (2002) 222 ALR 421, [34].

[57] Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, 551-2.

[63] A-G (NSW) v Quin (1990) 170 CLR 1, [36].

[64] Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447, [100].

[65] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, 230.

[67] A-G (NSW) v Quin (1990) 170 CLR 1, 36 (Brennan J); Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135, [43]-[44].

[68] A-G (NSW) v Quin (1990) 170 CLR 1, 36 (Brennan J).

[69] Director of Animal and Plant Quarantine v Australian Port Ltd and Others [2005] FCAFC 206; [2005] 146 FCR 368, [63].

[70] Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110, 118-119 (Gibbs J).

[72] Reasons [60]-[64]; above [106].

[75] [1986] HCA 40; (1986) 162 CLR 24, 40.

[76] O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210, 216 (Mason CJ and Brennan, Dawson, Gaudron JJ).

[78] Conversely, there may be circumstances where public participation and opinion are relevant, For example the use of survey evidence as to local community opinion: see Macedon Ranges Shire Council v Romsey Hotel [2008] VSCA 45. However, that is different from the notice provisions the subject of this appeal.

[79] With exceptions for certain permits relating to registered restrictive covenants: s 52(1)(ca) and (cb) of the Act.

[80] See for example, exempted applications in Residential 2 Zone and Industrial 1 Zone, Victorian Planning Provisions, cl 32, cl33; see also observations in Sweetvale Pty Ltd v VCAT [2001] VSC 426; Sweetvale Pty Ltd v VCAT [2003] VSCA 83; (2003) 126 LGERA 445.

[81] Parliament of Victoria, Legislative Assembly, Planning and Environment (Amendment) Bill 1993 (Vic), Second Reading Speech; 11 November 1993, 1699 (Mr Robert Maclellan, Minister for Planning).

[82] [1993] VicRp 45; [1993] 1 VR 627, 637.

[83] Planning and Environment Act 1987 (Vic) s 1.

[84] Section 4(1) relevantly states:

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

(b) to provide for the protection of natural and man-made resources and the maintenance of ecological processes and genetic diversity;

(c) to secure a pleasant, efficient and safe working, living and recreational environment for all Victorians and visitors to Victoria;

(d) to conserve and enhance those buildings, areas or other places which are of scientific, aesthetic, architectural or historical interest, or otherwise of special cultural value ...

[85] For example, the Melbourne and Metropolitan Board of Works, Melbourne and Metropolitan Planning Scheme: Planning Scheme Ordinance (1954).

[86] Planning and Environment Act 1987 (Vic) s 174(2)(c).

[87] Planning and Environment Act 1987 (Vic) s 174(2)(d).

[88] Planning and Environment Act 1987 (Vic) s 4A(1).

[89] Planning and Environment Act 1987 (Vic) s 1.

[90] This is so even if the development would also benefit a private company: see Kentucky Fried Chicken v Gantidis [1979] HCA 20; (1979) 140 CLR 675.

[91] Cf Emerald Developments (Aust) Pty Ltd v Minister for Environment, Local Government, Planning and Women (2006) 144 LGERA 452 where 'public interest' was held not to be a relevant consideration in the exercise of the ministerial discretion. Unlike s 20(4), the provision in that case did not expressly refer to the interests of the State as a relevant consideration.

[92] Iveagh v Minister of Housing and Local Government [1964] 1 QB 395; Dalton v Deputy Commissioner of Taxation (Cth) [1985] FCA 298; (1985) 7 FCR 382, [392]; Ansett Transport Industries (Operations) Ltd v Secretary, Department of Aviation (1987) 73 ALR 193, 197; Minister for Immigration Local Government and Ethnic Affairs v Taveli [1990] FCA 169; (1990) 23 FCR 162, [178].

[93] As noted by the learned trial judge, the preparation of these guidelines by the new government was foreshadowed by the Governor in his address to Parliament: Parliament of Victoria, Governor's Speech, Legislative Council, 3 November 1999 (Sir James Gobbo).

[94] See above [27].

[95] See above [43].

[96] See above [136]-[143].

[97] See Divisions 2-4 of Part 3 of the Act.

[98] [1993] VicRp 45; [1993] 1 VR 627, 634, 636.

[99] Section 39(7) of the Act.

[100] JJ Spigelman AC 'The Integrity Branch of Government' (2004) 78 (11) ALJ 724, 730.

[101] Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35-36 (Brennan J); Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 197 CLR 510, 579 (Gummow and Hayne JJA); Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 373 (Kirby J ).

[102] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 41-42 (Mason J); Attorney-General (NSW) v Quin (1990) 170 CLR 1, 36-37 (Brennan J); Murrumbidgee Groundwater Preservation Association Inc v Minister for Natural Resources [2005] NSWCA 10, [127] (Spigelman CJ); Bruce v Cole (1998) 45 NSWLR 163, 184; Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 51 NSWLR 589.

[103] Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, 626-627, (Gleeson CJ and McHugh J); Friends of Hinchinbrook Society Inc v Minister for Environment (No 2) (1997) 69 FCR 28, 59-65, (Sackville J).

[104] (1990) 170 CLR 1, 35-36.

[105] [1976] HCA 24; (1976) 135 CLR 110, 118-119.

[107] [1986] UKHL 1; [1986] AC 484, [14].

[108] Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59, [148] (Kirby J).

[110] Associated Provincial Picture House Ltd v Wednesbury Corporation [1948] 1KB 223.

[111] There is an affinity between Wednesbury unreasonableness and the exercise of the House v R judicial discretion: Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59, [67] (McHugh and Gummow JJ).

[112] Sydney Training Depot Snapper Island Ltd v Brown (1987) 14 ALD 464, (Wilcox J) citing Bromley London Borough Council v Greater LondonCity Council [1983] 1 AC 768, 821 (Lord Diplock).

[113] Williams v Melbourne Corporation [1933] HCA 56; (1933) 49 CLR 142, 155 (Dixon J).

[114] Bienke v Minister of Primary Industries and Energy (1994) 125 ALR 151.

[115] R v North and East Devon Health Authority; ex parte Coughlan (2001) QB 213, 244 (Lord Woolf MR).

[116] Puhlhoffer v Hillingdon London Borough Council [1986] UKHL 1; [1986] AC 484, 518 (Lord Brightman).

[117] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 356 (Mason CJ); Minister for Immigration and Multicultural Affairs v EpeaBaka [1999] FCA 1; (1999) 160 ALR 543, [20]-[26]; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, 145 (Gummow J); Gamaethige v Minister for Immigration and Multicultural Affairs [2001] FCA 565; (2001) 183 ALR 59, [28] (Finkelstein J); Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 [34], [37] (McHugh and Gummow JJ); [127] (Kirby J); Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446, [559]-[561] (Weinberg J). A decision resting upon a finding of fact totally unsupported by evidence which is critical to the decision, whether expressed as the taking into account of an irrelevant consideration, error of law, or unreasonableness, cannot stand: Luu v Renevier [1989] FCA 518; (1989) 91 ALR 39.

[118] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, 233-4; Council of Civil Service Unions v Minister for Civil Service [1985] AC 374, 410 (Lord Diplock).

[119] R v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; (1953) 88 CLR 100, 119 (Dixon CJ, Williams, Webb and Fullagan JJ).

[120] Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59, [138] (Kirby J).

[121] [1989] HCA 62; (1989) 169 CLR 379, 433-4.

[122] R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd [1953] HCA 22; (1953) 88 CLR 100, 109.

[123] [2003] HCA 30; (2003) 198 ALR 59, [54]. See also [59],[73].

[125] Parramatta City Council v Pestell [1972] HCA 59; (1972) 128 CLR 305; Prasad v Minister for Immigration and Ethic Affairs [1985] FCA 47; (1985) 6 FCR 155.

[126] For convenience, we will contract the description to 'the interests of Victoria'.

[127] Antoniou v Roper (1990) 70 LGRA 351; Grollo Australia Pty Ltd & Ors v Minister for Planning and Urban Growth and Development [1993] VicRp 45; [1993] 1 VR 627.

[128] Which, by statement or necessary implication, is a matter which the decision-maker must take into account.

[129] A point made by Brooking J (as his Honour then was) in Grollo Australia Pty Ltd& Ors v Minister for Planning and Urban Growth and Development [1993] VicRp 45; [1993] 1 VR 627 when he said (at 636) that 'since a total exemption under s 20(4) will often be followed by the speedy adoption and approval of the amendment, there is a natural tendency to run together the powers of the exercise of which without notice complaint is made, but the distinction should be preserved.'

[130] Obviously, the Minister would be likely to consider what development would be permitted by the amendment.

[131] A word used by the learned Chief Justice, [149].

[132] (1990) 70 LGRA 351.

[133] [1993] VicRp 45; [1993] 1 VR 627.

[134] The then-current language of s 20(4).

[135] Grollo Australia Pty Ltd& Ors v Minister for Planning and Urban Growth and Development [1993] VicRp 45; [1993] 1 VR 627, 642. Our emphasis.

[136] And in several other cases to which we need not now refer.

[137] Grollo Australia Pty Ltd& Ors v Minister for Planning and Urban Growth and Development [1993] VicRp 45; [1993] 1 VR 627, 641.

[138] See s 36(1) of the Act.

[139] Vol 9040 Folio 080, Vol 6132 Folio 258 and Vol 6132 Folio 257.

[140] [2005] VSC 242; (2005) 12 VR 448, 456-459, [20]-[28].

[142] According to the central argument, the public documents showed that the Minister formed the opinion that exemption was necessary so that completion of refurbishment works (which, we interpolate, did not require the amendment) could be achieved in time for the Commonwealth Games.

[143] [2005] VSC 242; (2005) 12 VR 448, 469, [60].

[144] Perhaps, he did not make it clear, he considered that other documents also fell within the description.

[145] [2005] VSC 242; (2005) 12 VR 448, 469, [61].

[151] [92]. Or at least documents which the Minister took into account: [93]. See also [107]-[108].

[152] [2003] HCA 56; (2003) 216 CLR 212.

[154] R v Home Department State Secretary; Ex parte Doody [1993] UKHL 8; [1994] 1 AC 531, 565 (Lord Mustill); see also Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1995] QCA 187; [1996] 2 Qd R 462, 476 (Fitzgerald P); Yung v Adams (1997) 150 ALR 436, 463-4 (Davies J), upheld on appeal (1997) 80 FCR 453; Attorney-General v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729.

[155] Jackson v Director-General of Corrective Services (1990) 21 ALD 261, 264 (Holland J); Qu v Minister for Immigration and Multicultural Affairs (2001) FCA 1299, [9] (Gray J).

[156] Ly v Minister for Immigration and Multicultural Affairs (2000) FCA 15, [27] _(K_enny J); R v Inland Revenue Commissioners; ex parte TC Coombs & Co [1991] 2 AC 283.

[157] Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280.

[158] Minister for Immigration and Ethnic Affairs v Liang [1996] HCA 6; (1996) 185 CLR 259, 271-2 (Brennan CJ, Toohey, McHugh and Gummow JJ); McAuliffe v Secretary Department of Social Security (1992) 28 ALD 609, 616 (Spender, Foster and O'Loughlin JJ).

[159] TCN Channel Nine Pty Ltd v Australian Broadcasting Authority (2002) FCA 896, [36].

[160] East Melbourne Group Inc v Minister for Planning [2005] VSC 242; (2005) 12 VR 448, 463, n 18.

[161] Excepting certain appendices, in which the date was erroneously stated to be 16 December.

[162] It seems to have been the end product of contributions by PCH's consultant and a departmental officer.

[163] We make clear our opinion that the reference to the 'provision of facilities' in the report's response to the second question should not sensibly be read to describe just the internal refurbishment of the Hilton Hotel.

[164] The site, but not the existing hotel, being by reputation the place where the rules of the game were first written down.

[165] See (our) [224].

[167] East Melbourne Group Inc v Minister for Planning [2005] VSC 242; (2005) 12 VR 448, [62].

[168] A number of these grounds did not give rise to live issues on the appeal.

[169] In the words of the written submission for the second respondent.

[170] [1996] 2 All ER 302, 315-316 (CA). The correctness of Ermakov was implicitly accepted by Eames J, (as his Honour then was) in Herald & Weekly Times Ltd v Correctional Services Commissioner [2001] VSC 329, and explicitly in Walker v Registrar of Titles [2001] VSC 354; (2001) 8 VR 618.

[171] Ibid 309f. In R (on the application of Nash) v Chelsea College of Art and Design [2001] EWHC Admin 538, Burnton J drew some distinction between the circumstances in which a court will go behind statutorily required reasons and reasons in other cases. But the distinction that he drew, which in any event he later revised, (R (on the application of B) v Merton LBC [2003] EWHC 1689 Admin) was a matter of emphasis.

[173] R (Richardson and another) v North Yorkshire County Council and others [2003] EWCA Civ 1860; [2004] 1 WLR 1920 [33]; Barke v SEETEC Business Technology Centre Ltd [2005] EWCA Civ 578 [35].

[174] Denver Chemical Manufacturing v Commissioner of Taxation [1949] HCA 25; (1949) 79 CLR 296, 313 (Dixon J).

[175] Sydney Municipal Council v Campbell [1925] AC 338; Telstra Corporation v Hurstville City Council & ors (2002) 189 ALR 737, 758 [50] (Sundberg and Finkelstein JJ).

[176] ARM Constructions v Deputy Commissioner of Taxation (No 2) (1986) 65 ALR 343, 351 (Burchett J); Collins v Repatriation Commission [1980] FCA 105; (1980) 32 ALR 581; Western Australia v Minister for Aboriginal Affairs and Torres Straight Islander Affairs (Carr J, Federal Court of Australia, 24 May 1995, unreported); Faulkner v Conwell [1989] FCA 103; (1989) 99 ALR 92, 96 (Jenkinson J, with whom Woodward and Ryan JJ agreed)

[177] See for example O' Brien v Repatriation Commission [1984] FCA 95; (1984) 1 FCR 472, 485-6 (Keely and Fitzgerald JJ).

[178] See for example Minister for Immigration and Ethnic Affairs v Arslan [1984] FCA 231; (1984) 55 ALR 361, 363-5 (Sweeney, St John and Morling JJ).

[179] Faulkner v Conwell [1989] FCA 103; (1989) 99 ALR 92, 97 (Jenkinson J); R v Westminster City Council, ex parte Ermakov [1996] 2 All ER 302.

[180] Rice Growers Co-operative Mills Ltd v Bannerman [1981] FCA 211; (1981) 38 ALR 535, 544 (Northrop J).

[181] Secretary Department of Infrastructure v Asher (2007) VSCA 272, [8] (Buchanan JA), [58]-[59], (Redlich JA).

[182] Indeed, bearing in mind the fact that adoption and approval of the amendment was necessary if expanded accommodation was (on the wholly implausible hypothesis) to be provided in time for the Commonwealth Games, we would say that the provision of such accommodation should be characterised as the dominant and substantial reason for the exemption decision. Wednesbury unreasonableness and relevant consideration grounds are related grounds of administrative review: Minister for Aboriginal Affairs and anor v Peko-Wallsend Ltd and ors [1986] HCA 40; (1986) 162 CLR 24, 41 (Mason J); Judicial Review of Administrative Action, Aronson, Dyer and Groves (3rd Ed), p 251-252. Where Wednesbury unreasonableness is present in the decision-maker's process of reasoning, the decision will be vitiated unless the perverse process of reasoning so identified could not have materially affected the decision.

[183] Counsel for PCH submitted that **'**the true and only reasonable conclusions' for the Minister's exemption decision were set out plainly in the public reasons which she published. Her reasons included the refurbishment of the Hilton Hotel in time for the Commonwealth Games, the substantial economic investment and job creation which would flow from the redevelopment, the desirable urban design outcome, the circumstance that the redevelopment would present an attractive gateway to the Central Activities District and reinforce the boulevard role of Wellington Parade through appropriate built form, improved street frontage, and so on. Counsel argued that these 'true and reasonable conclusions' reduced 'the stated reason, if accepted as the dominant reason, to immateriality in this particular circumstance.'

The submission could not be accepted. It was founded upon a view of the Minister's reasons which we have rejected. But even if it be assumed that other reasons could be discerned out of the material placed before the Minister, the provision of additional visitor accommodation in time for the Commonwealth Games, often declared in the public documents, in our view must have remained the dominant and substantial reason for the exemption. So the Minister's decision would still be vitiated.

[184] [1945] HCA 55; (1945) 72 CLR 37.

[185] Ibid 82, citing Cussen J in In re the Mayor etc of the City of Hawthorn; Ex parte Co-Operative Brick Co Ltd [1909] VicLawRp 6; (1909) VLR 27, 51,52.

[186] (1982) 41 ALR 467, 468 (Gibbs CJ, Mason, Murphy, Wilson and Brennan JJ).

[187] Thompson v Randwick Corp [1950] HCA 33; (1950) 81 CLR 87, 106; Haines v Annwrack Pty Ltd (1980) 39 LGRA 404, 413; Samrein Pty Ltd v Metropolitan Water Sewerage and Drainage Board (1982) 41 ALR 467, 468-9; Nettheim v Minister for Planning & Local Government (1988) 16 ALD 796; Warringah Shire Council v Pittwater Provisional Council (1992) 26 NSWLR 491, 509 and 521; Yates v Penola District Councillor [1997] SASC 5977; (1997) 68 SASR 64.

[188] Judicial Review of Administrative Action, (3rd ed, 2004), Aronson, Dyer & Groves, 298.

[189] R v Lewisham London Borough Council; Ex parte Shell UK Ltd [1988] 1 All ER 938, 951-2 (Neill LJ); R v Greenwich London Borough Council; Ex parte Lovelace [1991] 1 WLR 506; Jones v Swansea City Council [1990] 1 WLR 1453; R v Inner London Education Authority; Ex parte Westminster City Council [1986] 1 WLR 28, 48-9 (Megaw J).

[190] Municipal Council of Sydney v Campbell [1925] AC 338

[191] Specifically, in time for the Commonwealth Games.

[192] Minister for Aboriginal Affairs and anor v Peko-Wallsend Ltd and ors [1986] HCA 40; (1986) 162 CLR 24, 40 (Mason J), 56 (Brennan J).

[193] Flanagan v Commissioner of the Australian Federal Police; Robert Charles Howard v Commissioner of the Australian Federal Police; Bruno Grollo v Commissioner of the Australian Federal Police and Ors (1996) 60 FCR 149 (Beaumont, Ryan and Lindgren JJ); Samrein Pty. Ltd. v Metropolitan Water, Sewerage and Drainage Board (1982) 41 ALR 467, 470 (Gibbs CJ, Mason, Murphy, Wilson and Brennan JJ); Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408, 423 (Brennan J); Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509; Ang v Minister for Immigration and Ethnic Affairs [1994] FCA 952; (1994) 121 ALR 95, 101 (Wilcox J); Mathews v Maddigan, Full Federal Court, 6 November 1995, unreported; cf Simpson v Attorney-General (Baigent's Case) [1994] 3 NZLR 667, 673, 697; Bienke v Minister for Primary Industries and Energy (1994) 125 ALR 151, 171-2 (Gummow J).

[194] [1979] HCA 20; (1979) 140 CLR 675, 687.

[195] [2005] VSC 242; (2005) 12 VR 448, 471 [66].

[196] [2004] VCAT 2029.

[197] [2005] VSC 242; (2005) 12 VR 448, 471-471, n 26.

[198] Halsbury's Law of Australia, [10]-[2177].

[199] [1989] HCA 61; (1989) 168 CLR 210, 216.

[200] McKinnon v Secretary, Department of Treasury (2006) 80 ALJR 1549, 1561-2, [55] (Hayne J).

[201] [2007] WASCA 175; (2007) 34 WAR 403.

[202] (Unreported, Full Court of the Supreme Court of Western Australia, 24 November 1992 - Pidgeon, Nicholson and Walsh JJ).

[203] Whether and how a particular exercise of discretion could be successfully challenged are questions for another day.

[204] Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, 614, [48] (Gaudron and Gummow JJ); Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 228 CLR 294; Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211clr441.html" class="autolink_findacts">211 CLR 441.

[205] We leave for another day the question whether sub-ts(8) would preclude a right to seek and obtain relief for jurisdictional error.

[206] [1993] VicRp 45; [1993] 1 VR 627, 633-634.

[207] East Melbourne Group Inc v Minister for Planning [2005] VSC 242; (2005) 12 VR 448, 482 [101].

[208] R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598, 614-617 (Dixon J).

[209] Enfield City Corporation v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135, 157 (Gaudron J); Saap v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162, 211 (Hayne J).